Pan Pacific Property Group Pty Ltd v Waverley Council (2)

[2010] NSWLEC 1041

Land and Environment Court

of New South Wales

CITATION:	Pan Pacific Property Group Pty Ltd v Waverley Council (2) [2010] NSWLEC 1041
PARTIES:	APPLICANT Pan Pacific Property Group Pty Ltd RESPONDENT Waverley Council
FILE NUMBER(S):	10317 of 2009
CORAM:	Pearson C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Residential Flat Building Affordable housing
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Roads Act 1993 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy No 65: Design Quality of Residential Flat Development Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 (Amendment No 4)
CASES CITED:	ABC Planning Pty Ltd v Waverley Council [2008] NSWLEC 1495 Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226 Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 Goldberg v Waverley Council (2007) 156 LGERA 27 Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 Hopkins Tweed Shire Council (2001) 113 LGERA 406 Pan Pacific Property Group Pty Ltd v Waverley Council [2010] NSWLEC 1001 Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 Village McEvoy Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1214 Waite v Blacktown City Council [2004] NSWLEC 157
DATES OF HEARING:	29 September, 6 November 2009, 11 January 2010; submissions closed 4 February 2010
DATE OF JUDGMENT:	4 March 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr N Eastman, barrister Instructed by Gadens Lawyers RESPONDENT Mr S Brockwell, barrister Instructed by Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

4 March 2010

10317 of 2009 Pan Pacific Property Group Pty Ltd v Waverley Council

JUDGMENT

1 Commissioner: This is an appeal against the deemed refusal of development application DA113/2009 for alterations to an approved residential flat building at Lot 1 DP 15662, 30A Hastings Parade Bondi (the site).

2 The site is on the corner of Hastings Parade and Wairoa Avenue, on the northern side of Hastings Parade. The site area is 462.8sq m, with a frontage to Hastings Parade of 15.24m and to Wairoa Avenue of 30.57m. The site has a gradual slope from south west to north east. The current building on the site is a single storey building which was a former police station. On the north west side of the site is 30 Hastings Parade, a two storey semi detached residence, and on the north east is a two storey block of flats at 63 Wairoa Avenue. On the opposite side of Hastings Parade is a park; on the corner diagonally opposite is an older building with flats above a shop.

3 The site has been since 2005 the subject of a number of development applications and appeals to the Court. On 11 December 2008 Commissioner Hoffman approved consent orders and granted consent to the demolition of the existing building and construction of a new mixed use development containing one small shop, seven units, and associated parking for 4 cars on the north east part of the site accessed off Wairoa Avenue: ABC Planning Pty Ltd v Waverley Council [2008] NSWLEC 1495 (the 2008 approval). The work authorised by this consent has not yet commenced.

4 The development application has been amended during the course of these Class 1 proceedings, with consequent changes in the issues in dispute between the parties. The proposal now before the Court is for the erection of a four level building with seven units, a shop on the corner of Wairoa Avenue and Hastings Parade, and four car spaces accessed from Wairoa Avenue. The building comprises five one-bedroom units, one on the ground level, three on the first floor and one on the second floor; and two two-bedroom units, both split between the second and third floors with a connecting spiral staircase. The application as originally lodged with Council and the subject of the Class 1 appeal included two car spaces accessed from Hastings Parade. The applicant is no longer seeking consent for these two car spaces.

5 The Council contends that the Court has no jurisdiction to determine the application as the development application as constituted by amended plans filed on 13 November 2009 is so fundamentally different from the development application which on the basis of its deemed refusal by Council constituted the Class 1 application that it is outside the scope of the amendment power of cl55 of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulation). The Council further contends that the Court has no jurisdiction to determine an application for consent under s138 of the Roads Act 1993 (the Roads Act) for that part of the proposed development that extends over land owned by the Council. The Council contends that the application should be refused on the merits on the following grounds: the applicant has not offered a contribution towards affordable housing and the development fails against s79C(1)(b) of the Act as it will have an unacceptable social impact; the living area of the two storey unit on the north is on the third floor contrary to 5.2.3(d) of the Waverley Development Control Plan 2006; the living area of the ground floor unit is adjacent to the windows of the adjoining residence which will result in poor amenity to that neighbour; there is no justification for extending the terraces to the first, second and third floors beyond the boundary of the site onto Council-owned land; and in the public interest based on issues submitted by the adjoining neighbours.

6 The applicant disputes the jurisdictional arguments, and on the merits submits that if the issues of configuration of the northern unit, and extension of the terraces over Council-owned land were considered to be a basis for refusal, they can be dealt with by conditions.

Planning controls

7 The site is zoned Residential 2(c1) under the Waverley Local Environmental Plan 1996 and the proposed development is permissible with development consent.

8 The Waverley Development Control Plan 2006 (Amendment No 4) (the DCP) applies. Part D2 provides the relevant controls for multi-unit housing, including part 3.0 Building Envelope Controls, part 4.0 Streetscape and Site Design Controls, and part 5.0 Building Design Controls.

9 The DCP refers at 1.8 to the Waverley Affordable Housing Program. The relevant Council policies include the Waverley Affordable Housing Program Policy 2007 (the AHP Policy).

Background

10 In order to address the jurisdictional arguments put by the Council, it is necessary to set out the steps in the application and proceedings before the Court.

11 Development application DA113/2009 was lodged on 10 March 2009 and described the proposal in the following terms:

Alterations to approved residential flat building for additional 2 car parking spaces.

12 The four pages of plans accompanying the development application show the outline of four storeys of the residential flat building, elevations and sections, the four car spaces accessed from Wairoa Parade approved in 2008, and an additional two car parking spaces accessed from Hastings Parade. The Statement of Environmental Effects (March 2009) accompanying the development application stated the application to be:

Alterations to an approved residential flat building containing 5 x 1 bedroom units, 2 x 2 bedroom units and a small shop to provide an increase from 4 to 6 car spaces.

13 The Statement of Environment Effects states at p3:

No change is proposed to the approved building envelope, thereby remaining fully compliant with the envelope controls for the site including floor space ratio, setbacks, wall and overall height.

14 The applicant filed this Class 1 application against a deemed refusal on 19 May 2009. The town planners engaged on behalf of the parties met on 14 July 2009 for a joint conference in preparation for the hearing scheduled for 24 July 2009. A letter dated 16 July 2009 from the applicant’s solicitor to the Council’s solicitor included the following:

We confirm that the building footprint in the application the subject of these proceedings is greater than the building footprint previously approved by the court. The application proposes to increase the building footprint by up to one metre on the eastern and southern boundaries of the site.
We are instructed that a number of different versions of plans have been prepared for this site, resulting in the Applicant's architect becoming confused about the version of plans for which consent was being sought. As such, the Applicant’s architect had incorrectly advised the Applicant’s planner and ourselves in relation to the proposed building footprint.
This error was discovered by the Applicant’s town planner, Mr Betros, only on Tuesday of this week, and was immediately relayed to us.
We had previously understood that the application did not propose to change the approved building footprint, apart from a reduction in floor space to accommodate the additional car parking space. We recently advised you in accordance with this incorrect understanding. We apologise for our earlier incorrect advice.
Although this does not constitute an ‘amendment’ to the proposed development, we have obtained instructions and the Applicant does seek development consent for the proposed development shown in the plans filed in these proceedings, being the plans that will also publicly notified during the DA phase. This includes the larger building footprint as well as the additional two car parking spaces.
We are concerned that the Statement of Environmental Effects previously submitted and exhibited to the public was based on an incorrect set of drawings and therefore contained factual statements about the DA that were, inadvertently, incorrect.
In light of this, the Applicant now intends to file plans for the proposal that are clearly dimensioned (and that comply with Schedule A of the Court's Practice Note). The plans will not represent any physical changes to the development structure or envelope and will merely provide additional detail to enable the proposal to be properly assessed.
The applicant will also file an amended Statement of Environmental Effects to remedy the errors contained in the previous statement, as explained above.

15 On 16 July 2009 the applicant filed a Notice of Motion seeking to have the hearing scheduled for 24 July 2009 vacated. The hearing date was vacated and leave granted to the applicant to provide a revised Statement of Environmental Effects and architectural drawings containing dimensions and additional details of landscaping.

16 The revised Statement of Environmental Effects (September 2009) described the proposal as:

Alterations and additions to approved development to allow for 5 x 1 bedroom, 2 x 2 bedroom units, 1 corner shop, 6 car spaces and associated landscaping

17 The hearing commenced on 29 September 2009 with a site view, where evidence was heard from two residents, from 30 Hastings Parade, and 63 Wairoa Avenue. The site view included a view of the site from No 30 Hastings Parade.

18 The Council’s Final Amended Statements of Facts and Contentions filed on 27 August 2009 included a contention that the development application was invalid as it seeks to amend a development consent, or in the alternative if it is to be considered as a separate development application, the application is incomplete as it does not include the information required pursuant to Schedule 1 to the EPA Regulations concerning State Environmental Planning Policy Building Sustainability Index BASIX 2004, proper consideration against State Environmental Planning Policy 65 Design Quality of Residential Flat Development (SEPP 65), or consideration of the Waverley Affordable Housing Program Policy; or other documents including a landscape plan, model, photomontage, water management plan, Schedule of Finishes, and a Verification Statement from the architect. At the commencement of the hearing in court on 29 September 2009, Ms Morton for the Council objected to the tender of additional documents by the applicant, including an updated Statement of Environmental Effects (September 2009), design verification statement and design statement pursuant to SEPP 65, an Assessor Certificate prepared by the Association of Building Sustainability Assessors, a BASIX certificate, a photomontage, and a landscape plan. Mr Eastman for the applicant submitted that the additional documents did not constitute a change to the development application but were the provision of detail and information sufficient to assess the application. The applicant was granted leave to amend the application to rely on the additional documents which became documents 1 to 7 in Exhibit B.

19 The matter was adjourned part heard, and the resumed hearing date fixed so as to enable the Council to refer the application to the Randwick/Waverley Design Review Panel to obtain advice for the purposes of cl30(2) of SEPP 65. The hearing resumed on 6 November 2009 and the advice received from the Design Review Panel dated 2 November 2009 became Exhibit D. The Design Review Panel stated that the scale of the proposal was acceptable, and made a number of recommendations for adjustments to the massing and setbacks, including translating the building southwards so that the corner directly addresses both street frontages with a zero setback to the balconies on the upper levels, reinstatement of the 4.5m setback to 30 Hastings Parade, reducing the protruding balcony to the west or changing it to a window box, increasing the north setback to 6.8m as previously, and increasing the height of the rear portion at the ground floor to provide a 2700mm ceiling height to comply with SEPP 65. The Panel did not support any reduction in landscape area, particularly along the western boundary, or any increase in on site car parking. The Panel did not support the two additional car spaces on Hastings Parade, and recommended that the driveway to Wairoa Avenue be narrowed.

20 The applicant sought leave to amend the plans to incorporate many of the recommendations of the Panel. The Council indicated that it wished to see amended plans before determination of whether there should be leave to amend. The expert planners retained by the parties were sworn in; Mr Betros on behalf of the applicant outlined the proposed amendments and Mr Kosnetter on behalf of the Council commented on those proposed amendments. The parties agreed that the proposed amendments resolved most of the planning issues in dispute. Leave was granted to rely on plans amended in accordance with the notes prepared by Mr Betros and as marked on the plans in evidence of Mr Betros and Mr Kosnetter (Exhibit E). At the request of the applicant and with the agreement of the Council, the issue of costs under s97B of the Act was reserved for further submissions as to what the “original application” was for the purposes of s97B(2), and to allow the parties time to discuss the quantum of any s97B order. Directions were made for the Council to file and serve an amended Statement of Facts and Contentions, and to re-notify the amended plans, and any Voluntary Planning Agreement provided by the applicant. The matter was set down for further hearing on 21 December 2009.

21 On 4 December 2009 the Council filed a Notice of Motion to vacate the hearing fixed for 21 December 2009, primarily on the basis that the amended application had not been notified in accordance with the Court’s directions. The Council relied on an affidavit of Ms Catherine Morton sworn and filed on 4 December 2009, which annexed correspondence between the parties. The applicant opposed the application, and relied on an affidavit of Mr Gordon Hartley sworn and filed on 7 December 2009.

22 The correspondence between the parties concerning notification of the amended plans provided by the applicant to the Council on 13 November 2009 is summarised in paragraphs 4 to 6 of the decision of Acting Registrar Gray in Pan Pacific Property Group Pty Ltd v Waverley Council [2010] NSWLEC 1001. At the hearing of the notice of motion on 7 December 2009 the Council was represented by Mr Brockwell, who submitted that the amended plans did not fully embrace the agreement reached on 6 November 2009. Mr Brockwell indicated that the Council was no longer contending that the development application is invalid as it seeks to amend a development consent, however submitted that there is a jurisdictional barrier to the Court determining the application, on two grounds: first, that there is no jurisdiction to determine what is in effect an original application, and secondly, there is no jurisdiction to grant approval under the Roads Act 1993 to the extent that part of what is now proposed is over Council owned land. The Council was seeking to have the hearing date vacated and for the applicant to discontinue the proceedings.

23 Mr Eastman for the applicant opposed the vacation of the hearing date, and submitted that the Council could have notified the amended plans in time for submissions to be received by 21 December 2009. Mr Eastman submitted that notification of the amended plans could be dispensed with pursuant to cl90 of the EPA Regulation, or if required could proceed in a truncated form rather than the 14 days required under the DCP. Mr Eastman submitted that the jurisdictional issues raised by Mr Brockwell could be dealt with as a contention and were not a basis on which the applicant would discontinue the proceedings.

24 Having regard to the sustained opposition to proposed re-development of the site from adjoining residents, and to their concerns expressed about the process of having to respond to successive development applications, I was of the view that the notification provisions of the DCP ought to be complied with, and in full rather than in a truncated way. The recommendations made by the Design Review Panel and accepted by the applicant in the amendments to the plans appeared to go some way to meeting the concerns the residents had expressed in their evidence on site, and their views on the amendments would be relevant in a final determination of the merits of the application. Notification had not taken place. The hearing date was vacated, and the matter stood over for determination by the Acting Registrar of the application made by the Council for its costs of the notice of motion and the costs thrown away by reason of the vacation of the hearing date: Pan Pacific Property Group Pty Ltd v Waverley Council [2010] NSWLEC 1001. Further directions were made requiring the Council to notify the amended plans in accordance with the provisions of the DCP, and to file and serve an amended Statement of Facts and Contentions including the jurisdictional arguments raised. The parties agreed that the evidence on the remaining merits issues could be dealt with in addition to submissions on the jurisdictional and other issues at a resumed hearing.

25 The hearing resumed on 11 January 2010. Expert planning evidence was provided by Mr Lee Kosnetter on behalf of the Council, and by Mr Anthony Betros on behalf of the applicant. At the conclusion of the hearing directions were made for the parties to provide written submissions on the appropriate order for costs under s97B of the Act and conditions. On 2 February 2010 the parties advised that agreement had been reached as to costs under s97B. The applicant filed its submissions as to conditions on 29 January 2010; the respondent filed draft Conditions and submissions on 4 February 2010.

Jurisdictional issues

26 The Council relies on two contentions going to jurisdiction:

1a: The amended plans filed on 13 November 2009 constitute a new development application which should properly be characterised as an original development application, and the Court has no jurisdiction to determine an original application
1b: The Court has no jurisdiction to determine an application under s138 of the Roads Act 1993 unless a separate formal application has first been made to the Council

Amendment to application

27 Mr Brockwell for the Council submitted that the development for which consent was being sought in the development application lodged with the Council on 10 March 2009, publicly exhibited on 18 March 2009, and as filed with the Court on 19 May 2009 on the basis of a deemed refusal, was for two additional hardstand car spaces and only that. The Council relies on the statement on the Development Application form, and the Statement of Environmental Effects (March 2009) which states in the Introduction and Conclusion that “no change is proposed to the approved building envelope”. The Council submits that what is now before the Court is entirely different: the two additional car parking spaces no longer form a component of the development proposal; and the development application before the Court in effect seeks to amend the Court approved development consent by an increase in floor space ratio, increase in gross floor area, reduced northern, eastern and southern setbacks, reconfiguration of unit 7, an increase in ceiling height of the units raising the overall ceiling height, and an overhanging of a public road by the first, second and third floors.

28 Mr Eastman for the applicant submitted that the application before the Court was, and is, in relation to a deemed refusal of a development application which, properly characterised, is for the demolition of an existing building and the construction of a residential flat building. The development application has to be characterised according to an analysis of all of the plans and other documents, including the documents required by cll 1 and 2 of Schedule 1 of the Regulation.

29 The power to amend a development application is conferred by cl55 of the EPA Regulation:

55 What is the procedure for amending a development application?

(1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined.
(2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.
(3) If the development application is for:
(a) development for which concurrence is required, as referred to in section 79B of the Act, or
(b) integrated development,
the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.

30 The authorities on the extent of the Court’s power to agree to the amendment of a development application are identified in the decision of Acting Registrar Gray in The Village McEvoy Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1214. Those authorities, which address the issue in the context of contested applications to amend applications before the Court, confirm that the Court has no jurisdiction to entertain an original application, and that the relevant comparison is between the development application as originally made and the amendments sought: Waite v Blacktown City Council [2004] NSWLEC 157. The most recent judicial consideration was that of Jagot J in Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155, where her Honour noted (at [6]) that the criteria used to determine whether an amendment converts an application the subject of appeal into an original application have varied. Her Honour adopted a broad approach consistent with that adopted by Talbot J in Ebsworth v Sutherland Shire Council [2005] NSWLEC 603, holding:

7 At [40] in Ebsworth v Sutherland Shire Council , Talbot J observed that:
It is my view that Regulation 55 is beneficial and facultative and intended to facilitate the making of amendments on two accounts. Firstly to enable the applicant for consent to respond to any issues identified by the council or objectors and secondly to encourage a consent authority to solicit a better outcome. A broad approach to the application of Regulation 55 is therefore appropriate.
8 I also consider that a broad approach to both the scope and application of cl 55 is appropriate. Clause 55 enables any application to be amended or varied with the agreement of the consent authority at any time prior to determination. An amendment or variation, as cl 55(2) contemplates, may result in change to the proposed development. The extent of change able to be authorised by agreement of the consent authority or by the Court exercising that function on appeal (and which does not result in the conversion of the application into an original application) will depend upon the facts of the particular case (including, for example, the nature of the site and the nature and characteristics of the proposed development).
9 The availability of the power is to be determined having regard to the beneficial and facultative nature of the provision. That is, I consider that cl 55 ought to be construed so as to give “the widest interpretation which its language will permit” ( Bridge Shipping Pty Limited v Grand Shipping SA and Another (1991) 173 CLR 231 at 260 – 261 per McHugh J referring to Holmes and Another v Permanent Trustee Company of New South Wales Limited and Others (1932) 47 CLR 113 at 19 per Rich J).
10 The question whether the power should be exercised in a particular case (that is, should the Court, exercising the functions of the consent authority agree to the amendment or variation sought) is also to be answered having regard to the beneficial purpose of the provision. The factors relevant to that question will vary depending upon the circumstances in which the application is made (including, for example, the time at which the application is made and the reasons for making the application).

31 Jagot J disagreed with the approach in some of the earlier authorities of determining whether the proposed development is “substantially the same” as the development the subject of the development application lodged with the Council, stating:

16… I do not consider that the “substantially the same” formula (apparently derived from the modification power in s 96) reflects the full extent of the power available under cl 55. I prefer to ask whether the development now proposed is an amendment or variation of the application, recognising that an amendment or variation may result in change to the proposed development, but that the Court has no jurisdiction to entertain an original application.

32 In these proceedings the issue has been raised by the Council not in the context of determination of an application for leave to amend, but after the event. The question is whether the effect of those amendments is that what is now before the Court is in effect an original application such that the Court has no jurisdiction to determine it.

33 In my view, that is not the case. The Council’s interpretation of the original application as being for two hardstand car spaces only is not consistent with the approach to be adopted to the construction of development applications generally. The characterisation of development is not determined by how it is described in the development application (Hopkins v Tweed Shire Council (2001) 113 LGERA 406). In Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 Preston CJ held:

19 The misdescription in the development application of the development as being the amendment of the existing development consent does not necessarily mean that the development application is incompetent. The fact that somebody describes development in a particular way does not necessarily lead to invalidity; one looks to substance not form. The important point is to understand what is the particular development that is being proposed and that can be understood by looking at the particular plans accompanying the development application.

34 While the application was described as being for “Alterations to approved residential flat building…” it could not be an application to amend the Court granted 2008 consent: Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 at [16]. The particular development being proposed was that represented in the plans accompanying the development application form and Statement of Environmental Effects. Those plans, while not dimensioned, showed a four storey residential flat building with seven units and a corner shop, and parking for a total of six cars, four spaces accessed from Wairoa Avenue and two from Hastings Parade. The residents who made written submissions in response to the application as originally notified were aware of, and commented on, the increase in footprint of the building to the east and west, and its location closer to the western boundary, when compared with that in the 2008 approval.

35 The plans filed in accordance with the leave granted on 22 July 2009 provided details of setback and internal dimensions and revised details of landscaping, together with an amended Statement of Environmental Effects that more accurately described the application and its impacts.

36 The relevant comparison for the purposes of addressing the Council’s contention on cl55 is that between the original application, as clarified following the directions made on 22 July 2009, and the application now before the Court following the amended plans filed on 13 November 2009. The original application was for a four storey residential flat building with 7 units (5 x one bedroom, 2 x two bedroom), a corner shop and 6 car parking spaces with access from two street frontages. The amended application is for a four storey residential flat building with 7 units (5 x one bedroom, 2 x two bedroom), a corner shop, and 4 car parking spaces accessed from Wairoa Avenue. The north west side setback has increased from 3.5m to 4.5m, and there is a nil setback on the ground floor along the two street frontages. The internal dimensions and configuration of the units have changed, as has the location of bins and other storage. The height has increased as a consequence of an increase in floor to ceiling height for unit 1. While the physical dimensions of the proposed building and its location on the site have changed, these changes do not convert the original concept into something substantially different (to use the language of Lloyd J in Waite), or change the “essence” of the development (to use the language of Jagot J in Radray) such that what is now before the Court is an original application. The amendments made in the plans filed on 13 November 2009 do not fall outside the scope of cl55.

37 In exercising the discretion conferred by cl55, I concluded that it was appropriate to grant leave to rely on those amendments on the basis that they would considerably reduce the issues in dispute and go some way towards responding to the issues identified by the Council and the objectors. The granting of leave triggered the application of s97B of the Act; the question of whether an order for costs under s97B(2) was required and if so, the amount of any costs ordered, was reserved. The parties have reached agreement on the amount of costs payable as a consequence of the amendment, which will be reflected in the final orders made.

Roads Act consent

38 The second jurisdictional contention relates to the exercise of power under the Roads Act. The plans include an extension of the balconies to units 2 and 5 on levels 1 and 2 and the roof garden on level 3 to a squared corner over the corner of Wairoa Avenue and Hastings Parade. The Council contends that the applicant has not made a formal separate application to Council for its consent as the appropriate roads authority under s138 of the Roads Act for development over and use of those public roads, and that that the Court as a consequence does not have jurisdiction to determine such an application on appeal.

39 The requirement for consent under s138 is in the following terms:

138 Works and structures

(1) A person must not:
(a) erect a structure or carry out a work in, on or over a public road, or
(b) dig up or disturb the surface of a public road, or
(c) remove or interfere with a structure, work or tree on a public road, or
(d) pump water into a public road from any land adjoining the road, or
(e) connect a road (whether public or private) to a classified road,
otherwise than with the consent of the appropriate roads authority.

Maximum penalty: 10 penalty units .
…

40 The applicant’s solicitor wrote to the Council’s solicitors in a letter dated 27 November 2009 addressing four matters, three of which responded to issues raised by the Council in previous correspondence. Part 4 of the letter reads as follows:

4. Roads Act approval
The Applicant is seeking consent to construct balconies partially over the public road reserve. The Applicant therefore requires consent from the roads authority pursuant to s138 of the Roads Act for these works. The roads authority in this case is the Council.
This letter is a formal application for consent pursuant to s138 for the balcony works over the public road reserve. The Applicant applies for this consent without the imposition of any condition pursuant to s139(3) of the Act.
Could you please advise in writing if Council grants consent pursuant to s138 of the Roads Act for the balcony works over the public road reserve.
If the Council does not grant consent pursuant to s138 of the Roads Act for the balcony works over the public road reserve prior to the hearing, we will ask the Court, pursuant to s39(2) of the Land and Environment Court Act, to exercise the functions and discretions of Council in its capacity as roads authority and grant the application.

41 The letter in response dated 1 December 2009 states:

So far as your letter constitutes an application under s138 of the Roads Act 1993, we will take instructions and respond shortly.

42 In Goldberg v Waverley Council (2007) 156 LGERA 27 Biscoe J confirmed that s39(2) of the Land and Environment Court Act (the Court Act) confers power on the Court in the context of determining a Class 1 appeal arising out of a council’s refusal of a development application to exercise the Council’s functions and discretions as a roads authority to grant consent for roadwork under s138 of the Roads Act. The development application made in Goldberg described the application as being for “Demolition of existing dwelling; subdivision of land into 2 lots; Extension of local road; and new driveway”. The form of application was described by Biscoe J in the following terms:

10 The Statement of Environmental Effects accompanying the development application stated: “Accompanying the DA is an application under Section 138 of the NSW Roads Act 1993 proposing the construction of an extension of Birrell Street and a driveway access to the subject land”. A separate piece of paper constituting such an application is not in evidence and may not have been enclosed. Nothing turns on that. It is plain that the applicant was intending to make an application for consent under s 138 of the Roads Act. The council proceeded on that basis because in its notice of determination one of the reasons that it gave for refusing the development application was:
That Council refuse its owner’s consent to the extension of Lower Birrell Street as proposed in development application No. 412/06 as the local road authority and vested owner of the subject land under Section 138 of the Roads Act 1993.

43 The Council submits that inclusion of a portion of a letter addressing other matters in correspondence between the parties’ solicitors, as opposed to a self-contained or discrete application to the Council itself, is inadequate and does not constitute an application for a s138 consent. An application for consent would need to include additional information to enable it to be assessed. The applicant submits that where no method of application is prescribed, anything which sufficiently purports to be an application will satisfy the preliminary step to the engagement of the power. In Goldberg the applicant ticked the box on the Development Application form, while in these proceedings part of the amendments sought during the course of the proceedings included the overhanging balconies.

44 I agree with the applicant that a difference between these proceedings and Goldberg is in the timing. The applicant in Goldberg was aware of the need to obtain a s138 consent at the time the development application was lodged, indicated that such an approval was sought in addition to a development consent, and provided information to enable the council to determine the application. In these proceedings the need to obtain a s138 consent arose during the course of the proceedings before the Court when the plans were amended following the recommendations of the design review panel.

45 Section 138 provides a dispensation from what would otherwise constitute an offence. Section 139 describes the parameters of a consent, and provides:

139 Nature of consent

(1) A consent under this Division:
(a) may be granted on the roads authority’s initiative or on the application of any person, and
(b) may be granted generally or for a particular case, and
(c) may relate to a specific structure, work or tree or to structures, works or trees of a specified class, and
(c1) in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979, is subject to Division 5 of Part 4 of that Act, and
(d) may be granted on such conditions as the appropriate roads authority thinks fit.
(2) In particular, a consent under this Division with respect to the construction of a utility service in, on or over a public road may require the service to be located:
(a) in such position as may be indicated in that regard in a plan of subdivision or other plan registered in the office of the Registrar-General with respect to the road, or
(b) in such other position as the roads authority may direct.
(3) In particular, a consent under this Division with respect to the erection of a structure may be granted subject to a condition that permits or prohibits the use of the structure for a specified purpose or purposes.

46 Section 139(1)(a) enables the granting of a consent in the absence of any application. There is no prescription in the Roads Act as to the form of application required for consent under s138 if consent is sought by the person who requires the consent. In Goldberg, it was clear that the applicant was intending to make an application for consent and the Council understood that a consent was being sought. The terms in which part 4 of the letter dated 27 November 2009 was expressed made it clear that a s138 consent was required by the applicant and was sought, in the context of ongoing proceedings through the solicitors instructed to represent the Council in those proceedings. A separate letter addressed to the Council would not have added to the information provided, and the extent of works for which approval was sought was clear on the plans provided to the Council.

47 I am satisfied that the applicant applied to the Council for approval as the appropriate roads authority for consent under s138 of the Roads Act. The Council has not granted that consent. The approval of the overhanging balconies is an integral part of the proposed development and s39(2) of the Court Act enables the Court to exercise the functions and discretions of the Council under the Roads Act in the course of determining this appeal against a deemed refusal of development consent: Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226. I am satisfied that the Court has jurisdiction to determine the application for consent under the Roads Act, however, for the reasons set out below I am not satisfied on the merits that this consent should be granted.

Merits contentions

48 The Council contends that the application should not be approved on the grounds that the applicant has not offered an affordable housing contribution and as a consequence the development will have an unacceptable social impact; the location of the living area for unit 7 on the third floor does not satisfy part 5.2.3(d) of the DCP that attic spaces must not contain living and dining rooms; and that there is no justification for the extension of the terraces on the first, second and third floors beyond the boundary of the site over Council-owned land. The Council contends that the issues raised by the objectors are relevant in considering the public interest.

Views of residents

49 The Council has notified the application on three occasions: in March 2009 after the application was lodged; in August 2009 after dimensioned architectural drawings and the revised Statement of Environmental Effects were provided; and again in December 2009 following amendment of the plans in response to the recommendations of the Design Review Panel. The objections made to the proposal to add two car spaces from Hastings Parade related to reduction of on-street parking through the provision of two driveways; reduction in landscaping through addition of 2 car spaces; and inadequate setback of the proposed car spaces on Hastings Parade. Objections to the proposed corner shop included concerns that the shop would not add commercially to the area and may ultimately be used as a studio apartment. The objections made in response to the March 2009 and August 2009 notifications included concerns about the alteration of the building line from that approved in 2008 increasing the footprint of the building along the eastern and western walls and increasing the floor space ratio; change in setback to the western boundary from 4.5m to 3.1m; height and bulk of the building; noise and privacy concerns about the terraces; and the possibility that garden beds proposed for the fourth level could be removed.

50 Two residents gave evidence on the site view on 29 September 2009. Both expressed concerns about the number of applications that have been made for the site and the notification process. The resident at 30 Hastings Parade expressed concerns that the garage wall of the Hastings Street car spaces was 700m from her side boundary; and about loss of sunlight into her property, and noise from the terraces. A resident from 63 Wairoa Avenue stated concerns for loss of sunlight and privacy.

51 The Council received three letters of objection when the amended plans were re-notified in December 2009, two of which were from the residents who had given evidence at the site view. The objections repeated previously raised concerns relating to height and bulk, excessive floor space ratio, use of the terraces, and inclusion of a shop; and raised concerns relating to the extension of the shop to the corner boundaries resulting in non-compliance with street setbacks; elimination of landscaping around the shop; extension of terraces to street boundaries resulting in safety concerns for pedestrians; and lack of off-street parking.

Proposed building

52 The proposal now before the Court is for a four level building with seven units, a shop on the corner of Wairoa Avenue and Hastings Parade, and four car spaces accessed from Wairoa Avenue. There are five one-bedroom units, one on the ground level, three on the first floor and one on the second floor. There are two two-bedroom units, both split between the second and third floors with a connecting spiral staircase.

53 The proposal complies with the controls in part 3.3.3 of the DCP relating to maximum external wall height (9.4m), and maximum overall building height (12.5m). Part 3.3.3 specifies that in the residential 2(c1) zone the maximum number of storeys is three, and that an attic level or part additional floor may be permitted. The third level of the proposed building, containing part of unit 7, meets the requirements of part 4.4 of the DCP in that the walls are set back 2m from the perimeter of the building below and it occupies less than 40% of the floor area of the floor below. The north-west side setback from No 30 Hastings Parade is 4.5m, which complies with the requirement in part 3.7 of the DCP, and is to be landscaped. The setback from 63 Wairoa Avenue is 6m on ground level, which complies with part 3.6.3 (rear setback), with one metre of landscaping at the boundary and then the paved car access driveway. The south east setback along Unit 1 is 2m. The shop has a floor area of 60sq m, and extends to the boundaries of the site on Hastings Parade and Wairoa Avenue. The driveway access to Wairoa Avenue at the boundary of the site is 3.5m wide.

54 The positioning of the building on the site so that the corner shop has a nil setback from the two street frontages was recommended by the Design Review Panel. The Design Review Panel commented:

1 a density (FSR) higher than permitted under the LEP was appropriate to this corner site, given the intrinsic urbanity of the Bondi area. The panel was aware that Council has approved a number of projects on merit that exceed the LEP control;
2 many buildings on corner sites in Bondi have no street setbacks. There are a number of such along Wairoa Avenue, which is an unusually wide street and therefore benefits from the definition provided by street-wall type buildings;
3 corner shops are commonly located on such sites, and contribute greatly to the urban character, economic life and amenity of the area. Such small shops are anticipated in Council controls;
4 the panel maintains that, from a design and historical point of view, alternate schemes for corner sites are not sufficiently anticipated by the LEP or DCP;
5 heights of 3 and 4 storeys are commonly found in the context, and a highly appropriate to this site;
6 the relationship to the neighbour to the west is the main impact that needs to be considered by the design.

55 The setbacks to the neighbours at 30 Hastings Parade and 63 Wairoa Avenue as a consequence of the repositioning of the building on the site represent an increase on those originally provided in the application, and are the same as those approved in 2008. It was common ground between the parties in the 2008 proceedings that there would be no overshadowing of neighbours at relevant times of the year, and there is no evidence before me to indicate that this has changed. Privacy louvres are provided on the balconies on the first and second floors on the north east façade, and glass screens are provided on the balconies on the first and second floors on the north west façade. The terraces originally proposed off the bedrooms of units 3 and 6 on the north west side have been replaced by a window box with aluminium louvres. The amended plans as filed include provision of the living area of unit 1 on the ground floor on the north west side of the building, adjacent to the windows of 30 Hastings Parade. The expert planners were in agreement that this arrangement would result in a higher use of the outdoor space adjacent to the neighbour and consequent poor amenity to that neighbour, and the applicant has agreed to a condition of consent that would be consistent with the original proposal, which was that the living area face the street frontage of Wairoa Avenue.

56 The terraces from units 2 (first floor) and 5 (second floor) have a nil setback to the street frontages above the corner shop. Unit 5 on the third floor has a terrace area 1.5m wide along the Wairoa Avenue frontage and 2.5m wide along Hastings Parade. The living and dining area for unit 5 is on the third floor, with a terrace 1.5m wide along Wairoa Avenue and 2m wide at the rear. There is a roof garden between these terrace areas and the Wairoa Avenue and Hastings Parade frontages, which varies from .5m at the rear, 2m at Wairoa Avenue, to 2.5m at Hastings Parade. The roof garden along the north west side adjoining 30 Hastings Parade is 2m wide.

57 Subject to consideration of the Council’s contention relating to the configuration of unit 7 (discussed below), I am satisfied based on the evidence of the experts and the advice of the Design Review Panel that the location and orientation of the building on the site, the separation between the proposed building and neighbouring buildings, and the provision of louvres and screens and vegetation, achieve the objectives of the visual and acoustic privacy controls at parts 5.5 and 5.6 of the DCP.

58 The floor space ratio of the proposed building is 1.13:1. Part 3.4 of the DCP states that for development in the residential 2(c1) zone, the applicable maximum FSR is 0.9:1. The objective of the FSR controls is stated to be “to control the size, bulk and scale of developments to reflect the existing and desired future character of the area” (3.4.1). The original development application proposed a development with an FSR of 1.02:1. The increase results primarily from an increase in internal dimensions of the units, as recommended by the Design Review Panel to improve the amenity of residents. All units now have a 2.7m ceiling height which is consistent with the SEPP 65 Residential Flat Design Code. The Design Review Panel recognised that its recommended amendments to the proposal would result in an increase in floor space. The approach of the Design Review Panel to FSR in general was expressed in the following terms:

It is the Panel’s opinion that the FSR for this site should be guided by that of surrounding buildings. Existing buildings in this area with higher FSR’s than currently permitted are being developed with an equal or greater amount of FSR as a trade off for renewal.

59 The increase in FSR in the context of the presentation of the building to the street as recommended by the Design Review Panel was supported by Mr Kosnetter. Mr Kosnetter’s evidence was that it is standard urban design practice to build out to corners and that the numerical non-compliance with the DCP as represented in the plans now before the Court did not represent inappropriate bulk and scale.

60 The proposed building is within the DCP height limit of 12.5m. Based on the assessment of the Design Review Panel and the expert town planning evidence before me, I am satisfied that while the proposed building exceeds the DCP FSR control, it is not inappropriate for the site in terms of height, bulk and scale. The evidence before me establishes that the proposal strikes a balance for redevelopment of the site between meeting the concerns of adjoining residents through providing appropriate setbacks and landscaping, and achieving appropriate internal amenity for the proposed units that meets the SEPP 65 Residential Flat Design Code requirements.

Affordable Housing

61 The Council contends that as a consequence of exceeding the DCP maximum FSR of 0.9:1 the AHP Policy applies. The DCP includes in the strategy for the FSR controls at part 3.4.2:

…
· Section 6.0 contains the objectives and controls which address matters with respect to the Waverley Affordable Housing Program (WAHP). The section relates to the increased provision of affordable housing and applies when a development proposal seeks floor space allowances in excess of the allowable floor space. Satisfaction of requirements held within this section is a prerequisite for the granting of consent for consideration of floor space allowances. Floor space allowances are determined on the environmental impact of the additional space and the contribution of affordable housing pursuant the Waverley Affordable Housing Program and associated policy framework.

62 The Council contends that there is an additional gross floor area of 138sq m on a site of only 462.8 sq m, which is very substantial; the applicant has not offered a contribution towards affordable housing, which disregards the Council’s DCP and AHP Policy, and in doing so the proposal fails against s79C(1)(b) of the Act in that the development will have an undesirable social impact.

63 The applicant is not prepared to enter into a Voluntary Planning Agreement. The applicant submits that the Council has not provided evidence of the social and economic impact of the proposed development on the locality, and that on the contrary, the proposal provides a proportion of one-bedroom accommodation which is more affordable for purchase or rental and has a positive social and economic impact on the locality. The FSR of the proposed development is not excessive having regard to the bulk and scale of the development and so the application of a policy to “bonus” floor space is irrelevant; and refusing consent because a proponent has not entered into a planning agreement is not permissible pursuant to s93I(2) of the Act. Even if the AHP Policy were to be a relevant consideration, the objects of it are met: the one-bedroom housing dwellings proposed are smaller than the average dwellings and because of the style of accommodation and dwelling size the proposed units would meet the definition of “affordable housing” in the AHP Policy. The applicant submits that the proposal meets the objects of the Act as a whole and the LEP which include not only the provision and maintenance of affordable housing, but the promotion and co-ordination of the orderly and economic use and development of land.

64 The Council’s contention is framed in terms of the requirement imposed by s79C(1)(b) to consider likely impacts of the proposed development:

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

65 The LEP requires consideration of relevant specific aims, including those provided in cl3(1):

(1) The specific aims of this Plan in relation to affordable housing are:
(a) to encourage the retention of existing affordable housing, including boarding houses and rental housing provided by residential flat buildings,
(b) to encourage the development of new affordable housing in a variety of types and tenures for all income groups,
(c) to facilitate the expansion of the Council’s role in the provision of affordable housing in the public and private sectors, and
(d) to promote the development of a broader and more appropriate range of affordable housing types in the private sector.

66 The LEP defines “affordable housing” to mean:

“housing which, by virtue of its location, style of accommodation, levels of car parking and dwelling size, would sell at a price or rent at a rate which is comparable to or less than the existing median sale price or median rent level in the Council’s area”

67 Part 4.12 of the DCP identifies the relevant Council policies for the Waverley Affordable Housing Program:

This section contains the requirements relating to the provision of affordable housing contribution prompted when a development proposal seeks floor space allowances in excess of the allowable floor space. Satisfaction of the requirements held within this section is a pre-requisite for the granting of consent for floor space allowances. Floor space allowances are determined based on the environmental impact of the additional floor space and the contribution of affordable housing pursuant the Waverley Affordable Housing Program (WAHP) and associated policy framework.
The development application must comply with relevant provisions held within the Waverley Affordable Housing Program Policy 2007 (WAHPP 2007), Voluntary Planning Agreement Policy 2007 (VPAP 2007), and the Waverley Affordable Housing program Calculator (WAHP Calculator). These policies outline the means and procedures to achieve and implement the affordable housing objectives.

68 The AHP Policy states (at 2.6) that its objectives are derived pursuant to the aims in cl3 of the LEP, and (at 2.7) that its objectives are to be achieved as follows:

The WAHP objectives will be met where by an applicant decides to enter into the program and seek additional floor space via a DA for the provision of affordable housing (either through dedication of unit(s) or through rental arrangements) or through a monetary contribution. All monetary contributions generated through the WAHP will be used to increase the supply of affordable housing or to assist in maintaining the current/future stock of affordable housing.
Council stresses that the decision to enter into the WAHP is entirely voluntary. If an applicant does not wish to enter the program there is no compulsion to do so. Council will only grant additional floor space in the manner detailed in this policy where the impacts of this additional floor space are offset by sharing the planning gain and the environment impacts are deemed acceptable.

69 In evidence Mr Betros stated that the provision in the proposal of smaller, entry level, units, increases affordable housing in the locality. Mr Kosnetter agreed that units granted through the affordable housing program would be more likely to be one bedroom units, and that one bedroom units would be more likely to meet the definition of “affordable housing”. The method of calculation of an affordable housing contribution was not clearly identified in the evidence. Mr Kosnetter stated that it was broadly calculated on establishing the value of the excess of floor space; Mr Betros stated that it was calculated based on the ratio by which the FSR exceeded the control.

70 The AHP Policy is a relevant consideration and entitled to be given weight: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, Stockland Development Pty Ltd v Many Council [2004] NSWLEC 472. However, it cannot be determinative, and s93I(2) precludes a consent authority from refusing to grant development consent on the ground that a planning agreement has not been entered into in relation to the proposed development or that the developer has not offered to enter into such an agreement. The proposal has five of seven units as one bedroom units (71%) and two as two bedroom units (29%). This is inconsistent with the control at part 5.8.3 of the DCP of one bedroom: 35%, two bedroom: 50%, and three bedroom: 15%. The Council accepts this on the basis that it is unchanged from the mix approved in 2008. Based on the Rent and Sales Report for rentals for the September 2009 quarter, the median weekly rental for a one bedroom property in Waverley is $395, which is less than the median across all housing types. The Residential Flat Design Code states (at p69) that as a guide, a minimum apartment size for a one bedroom apartment of 50sq m can contribute to housing affordability. Three of the one bedroom units (3, 4 and 6) in the proposed development are 51.5sq m; unit 1 is 61.4sq m and unit 2 is 65.1 sq m. Having regard to the mix of apartment sizes, the relatively small size of three of the one bedroom units proposed, and the rental evidence, I agree with the applicant that the proposal could be regarded as falling within the definition of “affordable housing”. The evidence before me does not establish that the proposal has an adverse social and economic impact such as to warrant its refusal on this ground.

71 The parties disagree as to the appropriate configuration of unit 7. The plans have the two bedrooms and a bathroom for this unit on the second floor and the kitchen, living and dining area on the third floor, opening onto a terrace running along the northern and eastern sides. The Council opposes this configuration, as being contrary to the applicable control in the DCP:

5.2.3 Controls
(a) Attic rooms must have a minimum width of 3m.
(b) Attics must achieve a minimum floor to ceiling height of 2.4m, for at least two thirds of the floor area.
(c) Attics must be cross ventilated.
(d) Attic spaces must not contain living and dining rooms, and must be attached to a unit on the floor below.
(e) Attic rooms must not allow overlooking of adjacent dwellings, or their private open spaces.

72 The objective of the habitable attic rooms control is stated to be to “ensure that attic rooms achieve good residential amenity and environmental performance”.

73 The experts were in agreement that a purpose underlying this control is to minimise visual and acoustic privacy impacts on adjoining properties. Mr Betros was of the opinion that the location of the terraces to the east and north would minimise that potential in this instance, and that having the living area on the third storey would allow better light and sunlight into that area. Mr Kosnetter was of the opinion that elevated spaces are more likely to generate acoustic impacts, and possibly also visual impacts. Mr Kosnetter agreed that the units on the lower levels are closer to 30 Hastings Parade, however he was of the opinion that the more elevated the space the more likely it is to be used. Impact on internal neighbours would come from intensity of use. Mr Betros was of the opinion that it was preferable to have the living area on the upper level because it was a better design through cross ventilation and a better sized living area, and therefore would achieve the objectives. Mr Kosnetter’s evidence was that so far as he was aware the control in 5.2.3(d) has been consistently applied by the Council.

74 In assessing whether it is appropriate to depart from the control in part 5.2.3(d) it is relevant also to consider the control in part 4.4 Roof Design and Attic Levels, which include at 4.4.3 the requirement that

(d) Part additional floors may not be used where they compromise the privacy of residents within the development, or within neighbouring buildings.

75 The proposed third floor terrace is 2.2m wide on the northern side, adjacent to 63 Wairoa Avenue, and 1.5m wide on the eastern side facing Hastings Parade. I accept the evidence of Mr Betros that the residential amenity of unit 7 would be improved in terms of light, ventilation and internal design in having the living and dining areas on the upper level, and that there would be minimal impacts on internal neighbours given the orientation of the terrace. I am satisfied based on that evidence that the configuration meets the objective of the control in part 5.2.3 of the DCP. The experts agreed that the extent of impacts on external neighbours, in particular the residents of 63 Wairoa Avenue, would depend on the extent of use. The size and configuration of the terrace would restrict its use to some extent. The north western corner of the terrace is some 7m from the site boundary on both the northern and western sides. Given these setbacks and the orientation of the terrace, I am not persuaded that the configuration as proposed would compromise the privacy of neighbouring residents, and the configuration as proposed should be approved.

Roads Act consent

76 The proposal before the Court includes terraces from units 2 and 5 on levels 1 and 2, and a roof garden on level 3, each of which is designed with a squared corner which overhangs the footpath at the corner of Wairoa Avenue and Hastings Parade. The Council submits that consent should not be granted under s138 of the Roads Act, on the ground that the overhang is unnecessary in terms of pedestrian use or circulation on the proposed balconies, and unwarranted as the additional structural elements add bulk to a building that exceeds the applicable FSR. The applicant submits that the correct approach is not to question the necessity of the balcony overhang, but to look at the general prohibition in s138 and take into consideration the relevant considerations implied from the subject matter, scope and purpose of the legislation. On that basis, the applicant submits that there is no detriment occasioned to the Council or any member of the public; the proposal complies with the objectives in the SEPP 65 Residential Flat Design Code; the overhang was supported by the Design Review Panel; the squared corners respond to the built form of the development as well as its neighbours; and there is likely to be an awning over the corner shop on the ground level.

77 The experts disagreed on whether the squared balconies as proposed would meet the relevant objectives in the SEPP 65 Residential Flat Design Code, being:

To ensure balconies are functional and responsive to the environment thereby promoting the enjoyment of outdoor living for apartment residents
To ensure that balconies are integrated into the overall architectural form and detail of residential flat buildings

78 Mr Betros was of the opinion that the squared design provided for a more regular space and improved appearance, and that to include curved balconies would be out of character in the vicinity. Mr Kosnetter was of the opinion that a curved edge would not be detrimental to functionality, and that either a curved or squared balcony would meet the objective. Mr Kosnetter agreed that there is generally not a problem for the public when awnings overhang footpaths, although this is generally confined to commercial areas.

79 The approach to identifying the relevant considerations to be taken into account in exercising the power under s138 of the Roads Act is set out in the decision of Preston CJ in Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226 at [71]-[74]. His Honour was in that case considering the exercise of power under s125 of the Roads Act, however, there is nothing in the legislation to indicate that the approach to s138 should differ. The relevant considerations are first, matters expressly stated in s138, and secondly, considerations which are to be implied from the subject matter, scope and purpose of the legislation. Preston CJ held:

74 In addition to the expressly stated considerations, the decision maker is bound to take into account considerations which are implied from the subject matter, scope and purpose of the statute conferring the discretionary power: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. The objects of the statute assist in construing the subject matter, scope and purpose of the statute but do not exhaust the inquiry. In this case, the objects are in s 3 of the Roads Act. The terms of the power itself may also be relevant to be considered, in this case, s 125 of the Roads Act. The public interest may, by implication from the subject matter, scope and purpose of the statute, be a relevant matter to be considered: Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [39], [43]. In this case, the public interest is central to the task of a council fulfilling functions under the Roads Act, including approving under s 125 the use of a footway in a public road for restaurant purposes. The public interest is multi-faceted and includes the public interest in members of the public being able to pass along and use public roads, in persons who own land adjoining the public road having access to the public road and in regulating the carrying out of various activities on public roads.

80 On the relationship between planning issues and the exercise of power under the Roads Act, Preston CJ held:

78 If a planning issue or aspect is a relevant consideration to be taken into account in the exercise of the discretionary power in s 125 of the Roads Act, the commissioner in exercising that power was bound to take it into account. The fact that a planning issue or aspect might also have been taken into account in an earlier exercise of the power under the EPA Act to grant development consent is irrelevant. Each statutory power must be exercised taking account of the relevant considerations each statute requires the decision maker to take into account. The fact that there may be an overlap in one or more of the relevant considerations does not relieve a decision maker who takes the overlapping relevant considerations into account in an earlier exercise of power under one statute from the obligation to take those relevant considerations into account in a later exercise of power under another statute. Rather, each statute requires “reconsideration” of the overlapping relevant considerations, in the sense of taking the relevant considerations into account in each exercise of each statutory power.

81 The objects of the Roads Act are set out in s3:

The objects of this Act are:
(a) to set out the rights of members of the public to pass along public roads, and
(b) to set out the rights of persons who own land adjoining a public road to have access to the public road, and
(c) to establish the procedures for the opening and closing of a public road, and
(d) to provide for the classification of roads, and
(e) to provide for the declaration of the RTA and other public authorities as roads authorities for both classified and unclassified roads, and
(f) to confer certain functions (in particular, the function of carrying out road work) on the RTA and on other roads authorities, and
(g) to provide for the distribution of the functions conferred by this Act between the RTA and other roads authorities, and
(h) to regulate the carrying out of various activities on public roads.

82 The range of activities that can be authorised by a roads authority under s138 is broad, and the type of consent that might be granted, and the conditions to which it might be subject, is also broad: s139. The consent sought in this matter is for the erection of a permanent structure over part of a public road. Access for members of the public to pass along the footpath would not be impeded if the consent were to be granted, which is consistent with the object in s3(a). Unlike the erection of an awning, the limited airspace proposed to be occupied by the balconies on the first and second levels is unlikely to provide any significant benefit to members of the public, for example by providing shelter from rain and the sun. The objectors raised concerns about the possibility of items falling over the edge. The risk of this occurring is minimised by the provision of a full height glass screen along the terrace edge adjoining Wairoa Avenue, and a 1m high screen along Hastings Parade.

83 The first and second floor terraces as originally designed were to be 2.2m wide along Wairoa Avenue and 2m wide along Hastings Parade. As now proposed, along Hastings Parade the terrace narrows from 2m at the western end to approximately 1.8m at the corner. Extending the corner out over the footpath provides useable space at the corner of what is a relatively narrow terrace. I agree with the applicant that the balconies should be increased in width to make them more usable and indeed they were wider in the original plan. This does not, however, require that the balconies extend beyond the boundary over the footpath along either Wairoa Avenue or Hastings Parade. The internal space of unit 2 on the first floor, and the living and dining area of the lower level of unit 5 on the second floor, are both 65.1 sq m, and as shown in the current plans both have a separation between the living and dining areas. The provision of a separate dining and lounge room may give rise to the potential for the conversion of unit 2 to a two bedroom unit and unit 5 to a three bedroom unit. Having regard to the affordability issue argued by the applicant in relation to the mix of unit types in the proposal it would be appropriate to reconfigure and reduce the internal space of these units to provide for both an increase in the width of the balcony and to remove the potential for an additional bedroom. Removal of the overhang would also address the concerns of the resident objectors about the bulk of the building. I am not persuaded that consent should be granted under s138 of the Roads Act.

84 These issues could be resolved by amendments to the plans which ensure the architectural integrity of the building having regard to the streetscape presentation when viewed from the public domain. Given the corner location it may be appropriate to angle the corner with a splay into the internal space of the units to define the corner, or to indent the balcony into the living area.

85 The ground level corner shop curves around the boundary and does not require a s138 consent. Depending on the architectural resolution for the units above on the corner the architect may wish to consider the corner presentation of the shop. I note that the perspectives provided with the original plans shows that the building has straight lines as opposed to the curved presentation of the corner in the current plans where the shop has been brought to the boundary. An angled presentation would be consistent with the treatment of the corner of the building diagonally opposite. The consequent reduction in area for the corner shop, which at 60 sq m is at the maximum for a corner shop, would be minimal.

86 It would be preferable in the interests of certainty, and to provide for an integrated design and presentation of the building, for these matters to be resolved by the architect through an amended plan as opposed to conditions.

Conditions

87 There are four draft conditions of consent proposed by the Council and opposed by the applicant.

88 Proposed condition 2 requires that the Construction Certificate plans be supervised and to the satisfaction of Julian Brenchley in accordance with the requirements of SEPP 65. The Council submits that this condition is consistently applied for residential flat buildings in the area, and is supported by cl143A of the EPA Regulation. The applicant opposes the condition on the basis that it is inappropriate for a consent authority to require a specific consultant to prepare, or effectively approve or reject, construction certificate plans. The proposed directions intended to implement my preliminary findings make it unnecessary to include this condition.

89 Proposed condition 3 relates to retention and removal of trees and shrubs on the site and neighbouring sites. The applicant opposes the condition on a number of grounds: that it requires taking steps to protect a tree on adjoining land when there is no evidence that the development will have any impact on the tree, and that tree removal and replacement are to be consistent with the Landscape Plan. The Council submits that this is a standard condition. I agree with the Council that the condition should include provision for protection of the tree and its roots on the adjoining property; however, I agree with the applicant that the Landscape Plan which is included in the plans identified in condition 1 should provide the reference point for removal and replacement of trees on the site; condition 3 should be re-drafted.

90 Proposed condition 4 requires that the Landscape Plan ensure landscaping on the site to be representative of a minimum 50% local native species and 50% native species. The Council submits that the condition is a standard condition and places no special burden on the applicant. The applicant submits that the Landscape Plan is part of the conditions of consent. I agree with the applicant that the approved Landscape Plan should be the reference point for required planting, and condition 4 should be deleted.

91 Proposed condition 46 requires that the existing driveway be reduced to a single driveway crossing to the satisfaction of the Manager Technical Services and that unused concrete be removed and the area graded and turfed. The applicant submits that this condition is unnecessary and is not supported by the evidence; the Council submits that both expert witnesses supported the reduction of the existing driveway to a single driveway, that there is no planning basis for maintaining the double driveway crossing, and that the condition is appropriate so that Council engineers determine the works that take place on Council owned land. The Design Review Panel recommended the narrowing of the existing driveway on Wairoa Avenue to 3.5m to improve streetscape and pedestrian environment. In oral evidence Mr Betros and Mr Kosnetter agreed that an opening of 3.5m at the boundary would need a splay at the street; Mr Kosnetter indicated that the design of the splay would be determined by Council engineers in accordance with the relevant Australian Standard. I accept their evidence that reducing the existing driveway to 3.5m at the boundary of the site would improve the streetscape while not impacting on the access for the four approved car spaces. Condition 46 should be re-drafted to provide for reduction of the existing driveway to 3.5m at the boundary of the site with design to be subject to the approval of the Manager Technical Services.

Conclusion

92 For the reasons outlined above, I am satisfied that the proposed development can be approved subject to some modification. I propose to allow the applicant to provide amended plans which provide for a re-design of the corner of the building at ground and the upper levels, and the balconies at first, second and third levels to remove the overhang, with a consequent reduction in area of unit 1 and that part of unit 5 on the second floor to approximately 63 sq m, and to detail the reconfiguration as agreed of unit 1. The applicant is also to provide a new BASIX certificate. The amendment of the plans, and the additional matters discussed at paragraphs 88 to 91 above, will also require that the proposed Conditions of consent be amended. Directions will be made in consultation with the parties to set a timetable for the provision of this further documentation to reflect my preliminary findings. Subject to the matters above being satisfactorily addressed I will then be in a position to issue formal orders.

Linda Pearson
Commissioner of the Court