Sector 7F Pty Ltd v Parramatta City Council

[2001] NSWLEC 284

Land and Environment Court

of New South Wales

CITATION:	Sector 7F Pty Ltd v Parramatta City Council [2001] NSWLEC 284
PARTIES:	APPLICANT Sector 7F Pty Limited RESPONDENT Parramatta City Council
FILE NUMBER(S):	10176 of 2001
CORAM:	Sheahan J
KEY ISSUES:	Development Application :- Regional Environmental Plan - Development Control Plan - zone objectives - urban design considerations - height controls - bulk and scale - flood liable site
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sydney Regional Environmental Plan No.28 - Parramatta
CASES CITED:	Carstens v Pittwater Council (1999) 111 LGERA 1; Dyldan Developments Pty Ltd v Parramatta City Council (Roseth C, 10702 of 1998, 10 March 1999); Ly & Ors v Parramatta City Council (Nott C, 10375 of 1999, 6 December 1999)
DATES OF HEARING:	25/09/2001-26/09/2001
DATE OF JUDGMENT:	12/21/2001
LEGAL REPRESENTATIVES:	APPLICANT Mr S Berveling (Solicitor) Abbott Tout RESPONDENT Mr C Gough (Solicitor) Storey & Gough

JUDGMENT:

SECTOR 7F PTY LIMITED

Applicant

v

PARRAMATTA CITY COUNCIL

Respondent

JUDGMENT

Introduction

1. This is an appeal, in class 1 of the court’s jurisdiction, against the respondent Council’s refusal of an application for consent to development on the site known as No.16 Kendall Street, Parramatta, which also has a frontage to Parkes Street (“the subject site”).

2. The subject site is on the northern side of Kendall Street and the southern side of Parkes Street, between Wigram Street and Station Street East, Parramatta, and it is currently occupied by a partially demolished house. It presents some difficulties because it has the two street frontages and is flood-liable (see photographs of both streetscapes in Exhibit A5).

3. It is zoned “City Edge” under Sydney Regional Environmental Plan No.28 – Parramatta (“REP 28”) under which the proposed mixed residential/commercial development is permissible with consent, and probably conforms with the zone’s objectives. The Council contends, however, that the proposal does not comply with relevant controls.

4. In an attempt to achieve better urban design within the Parramatta city centre, REP 28 deals fundamentally with objectives, and various development control plans (“DCP”) deal with actual controls.

5. The court had the benefit of a site inspection on the morning of the second hearing day (26 September 2001), and of a model of the relevant city block bounded by Parkes, Kendall and Wigram Streets, and Station Street East (Exhibit C1).

Issues to be determined

6. In its Final Statement of Issues (Exhibit C8), the Council raises the following issues that it says cannot be conveniently dealt with by the imposition of conditions:

1. Non compliance with the building design controls of cl 25 of REP 28 in the following respects:

(a) the proposal does not address Kendall Street
(d) the proposed building does not have regard to the adjoining buildings.
(h) the above ground carparking has not been located behind active uses.
(i) …
2. The bulk and scale of the proposed development.

3. Non-compliance with “street Section B as required” by REP 28.

4. The subject site is flood liable.

5. The proposal is not consistent with Council’s interim flood policy.

6. The proposal may detrimentally increase the potential flood affectation on other development or property.

7. The proposed development may result in an increased risk to human life.

8. The proposal adversely affects the amenity of adjoining properties particularly in regard to overshadowing and visual bulk.

7. I will deal with these remaining issues in three groups:

(h) The terms, meaning and application of REP 28 is at the core of issues 1 and 3.

(ii) Issues 4, 5, 6 and 7 are flood-related, and, according to Mr Gough (T21 L37-42), “the real issue between the parties is whether the floor of the development should be located either where it is at 9.05 or half a metre above the flood level which would be 9.4”.

(iii) Issues 2 and 8 concern merits issues of bulk and scale, visual impact, overshadowing, etc which turn, essentially, on the impact of the “ tower ” element of the proposal.

Expert witnesses

8. The applicant relied upon:

· The project architect Ross Howieson (Exhibit A2), who has lived and worked next door to the subject site, at 7 Parkes Street, for 30 years.

· Town Planner Allan Caladine (Exhibit A3), who, according to his CV, was a town planner with Parramatta City Council in 1987-2000, and the senior town planner from 1995-2000.

· Consulting Engineer Edward Lucas (Exhibit A4), who was a director of Dalland & Lucas Pty Ltd from 1988 to 1997, following 10 years working for local councils (including Parramatta Council 1978-1980).

9. The respondent Council relied upon:

· Council’s Senior Town Planner, Atalay Bas (Exhibit C5).

· Specialist urban designer (from the Department of Urban Affairs & Planning), Russell Olsson (Exhibit C6).

· Council’s Subdivision Development Control Engineer, Vidya Sivakumar (Exhibit C7).

10. Olsson also relied upon a Urban Design Advisory Service August 1999 document “Draft Parramatta REP – Review of Building Heights and Floorspace Ratios” (Exhibit C12).

11. All six experts gave oral evidence and were cross-examined.

The proposal and its context

12. Bas says of the location of the proposed development (Exhibit C5 p3):

Located on the edge of the City Centre, Parkes and Kendall Streets are of strategic importance as a transition between the city core and nearby conservation area of Harris Park which contains historic low-density residential developments of national significance. This edge to Parramatta City has undergone considerable investment with a number of recent approvals and current development applications for low rise mixed-use developments.

13. Bas opines (Exhibit C5 p4):

Common elements of recent and future development in this city edge includes (sic):

This built form is an outcome of the urban design requirements of Sydney regional environmental Plan No.28 – Parramatta which envisages a gradual transition from low-scale commercial buildings to high rise buildings in the city core.

14. He describes the subject proposal (Exhibit C5, s 3.4, p5) as follows:

The proposed development involves carrying out:

· Demolition of the existing dwelling house structure;

· Site preparation works;

· Construction of an eight level mixed use building with car parking; and

· Strata subdivision

The proposed development comprises a ground floor carpark entry via Kendall Street with main entries to commercial uses on levels 2 to 5 and residential units (all 3 bedrooms) on levels 6 to 8 via Parkes Street.

The building mass is concentrated at the northwestern end of the site, resulting in a small tower fronting Parkes Street and a lower podium fronting Kendall Street. The Parkes Street frontage has been designed to incorporate an undercroft with landscaping and water features.

15. Parramatta’s CBD and the Westfield complex are roughly 500m north-west of the subject site, and the entrance to Parramatta Railway Station is roughly 300m north of the site. Harris Park Station is also located conveniently close to the site.

16. Parkes Street is the main thoroughfare connecting Church Street, Parramatta, and The Great Western Highway, with James Ruse Drive, but the site is located in a basin, with a slight fall over the length of the block from Kendall to Parkes Street of approximately 0.5m. The site has a frontage to Parkes Street of 6.57m, a frontage to Kendall Street of 13.715m, and a depth ranging from 47.34m to 48.79m. The area of the site is 627m2.

17. Natural ground level on the subject site is below the 1:20 year flood level. Parkes Street, according to map DA09B (Exhibit A1), has a level of RL 7.76 or RL 7.55.

18. In 1998 Council granted development consent for the construction of a four-storey commercial office building on the site. That consent required minimum floor levels of RL 8.9 for the foyer and RL 9.4 for the “habitable” floors. The consent has not been taken up, and remains valid until 2003.

19. The subject proposal is for the construction of a partly two-storey, partly eight-storey mixed commercial and residential development, with four proposed residential units at the higher levels (6, 7 and 8) of the taller section together with “associated carparking, landscaping and amenity areas” (Exhibit A3 p1). The proposed building presents to Kendall Street as a two-storey building form with the main portion of the building setback approximately 19m from the Kendall Street frontage towards Parkes Street.

20. Caladine describes (Exhibit A3 p5) the surrounding development as consisting of a mixture of large multi-storey commercial offices, smaller scale retail/commercial buildings, residential flat buildings, light industrial development and smaller single dwellings - all these types of buildings are located within the visual catchment of the site.

21. The land immediately to the south of the site, opposite it in Kendall Street, contains a mixture of low to medium rise commercial and residential buildings on the interface with a conservation zone or heritage precinct. There are no heritage items opposite the site and the types of land uses include a restaurant, the Parramatta Fire Station and the Harris Park Bus Company. Further to the south are mainly cottages being used for commercial office purposes, shops, residential flat buildings and the Harris Park business district including Harris Park Railway station (Exhibit A3, p7).

22. On the Parkes Street side, a twelve-storey office building is located diagonally opposite the subject site on the corner of Parkes and Smith Streets. The restaurant known as “Amazones” is located on the opposite corner of Parkes Street and Station Street East, nearest the subject site, and has recently been sold for redevelopment purposes. Also on the opposite site of Parkes Street there will shortly be a pair of Meriton apartment towers at least 50% higher than the office building.

23. Opposite the site, alongside Parkes Street, is an open stormwater channel, which is the main channel of Clay Cliff Creek. The catchment of that creek covers 321ha and is heavily urbanised. The creek itself runs through the City Centre, largely in a mainstream concrete lined channel of varying width between 3m and 7m. That channel is covered and enclosed as it passes from the western to the eastern side of the railway line, but the covering terminates 20m upstream of the subject site.

24. Mainstream flooding appears to be a problem in sections of the creek, mainly due to the backwater effect from major flooding of the Parramatta River. A major flood study of the creek by Dalland & Lucas Pty Ltd in 1992-3 (Exhibit C7) was adopted by Council, and determined that Parkes Street has approximately 1m depth of floodwater flowing at a velocity ranging from between 1.4m and 2m per second during a 1:100 year flood event.

25. The subject site and surrounding properties are trapped with a large ponded or inundated area during heavy storm events. The site is inundated during the 1:20 year and 1:100 year events. The adopted flood levels are RL 8.7 for the 1:20 and RL 8.9 for the 1:100 year event.

26. The evidence indicates that local flooding from Clay Cliff Creek is of a short term nature lasting up to a maximum of approximately 25 minutes. The proposed building has all floors above flood level, and persons caught in the building during a flood would be inconvenienced only for a maximum of 25 minutes. This is not a life threatening situation (Exhibit A4 p3). The design incorporates a flood storage area under the elevated “ground floor” parking level.

27. Because of the flood liability of the subject site, and contrary to Council’s preference for the City Centre (T19), the proposed building’s parking will involve a “stacker” facility above ground level.

The applicable planning regime

REP 28

28. Exhibit C2 contains a suite of documents - the Parramatta Regional Planning Strategy 1999, Parramatta Regional Access Strategy 1999, REP 28, and Parramatta Regional Action Plan 1999 - which signalled a new planning regime in the central business district of Parramatta, a regime stated to have been “a long time coming” (T68 LL43-44).

29. The preparation of these documents commenced in October 1996 when the Premier announced “a partnership between the State Government, Parramatta City Council and local business to guide the preparation of a Regional Environmental Plan for Parramatta Primary Centre”. The Primary Centre is predicted to grow to accommodate 90,000 employees by 2021 from a current position of approximately 60,000. The majority of the employment growth will be in the city centre, but its residential population will also continue to grow. The city centre is expected to accommodate more than 8,000 residents by 2021.

30. The Primary Centre contains the Parramatta City Centre, Harris Park and Government precinct, Westmead precinct, Rydalmere precinct, Camellia precinct, and the Parramatta River. The subject site is just outside the city core region of the City Centre precinct, in an area designated as “City Edge – mixed uses to make a liveable city” (Exhibit C2, Strategy Map 3.1, p19).

31. Bas describes (Exhibit C5 p7) the evolution of REP 28 (Exhibit C2), which he states is “the first planning instrument to provide an integrated planning, management and infrastructure package” for Parramatta which “will guide growth and development over the next 20 years to achieve the outcomes of identity, liveability, prosperity, accessibility and sustainability”.

32. REP 28 was made on 20 August 1999, and Mr Gough for the Council (T26.9.01, p63 L30-46) pointed out to the court that this was the first decision involving it, although there were a few earlier cases on the REP in draft form, or involving transitional DAs, in which there was more argument about the savings provisions and the amount of weight to be given to the then draft plan. See, e.g., Dyldan Developments Pty Ltd v Parramatta City Council (Roseth C, 10702 of 1998, 10 March 1999, unreported), and Ly & Ors v Parramatta City Council (Nott C, 10375 of 1999, 6 December 1999, unreported).

33. Following the 1999 judgments while the REP was still in draft form, the subject site and its surrounding precinct were transferred back to the City Centre Precinct. The FSR was increased from 1.5:1 to 3.5:1, and the maximum height limit increased from three-storeys, or 11m, to 28m.

34. Clause 5(6) provides that State Environmental Planning Policy No.1 “does not apply to height requirements for buildings within the City Centre …”.

35. Clause 14(1) provides that “The regional planning aims … apply to the whole Parramatta Primary Centre and provide a framework within which other development controls operate”. Among the relevant aims in clause (14(2)(h) provides that one aim is “to improve the quality of urban design and ensure the public domain is safe and attractive”.

36. Clause 15 states the aims of the plan in respect of the City Centre precinct in the following terms:

(a) to enhance the Parramatta City Centre as a pre-eminent commercial, retail, community services and cultural tourism centre in the Greater Metropolitan Region,
(b) to provide sufficient development capacity for the growth of Parramatta City Centre in its retail, residential and commercial functions,
(c) to enhance access to Parramatta, particularly by public transport, walking and cycling,
(d) to ensure development enhances, protects and capitalises on Parramatta’s heritage, the river corridors, park systems, public spaces and special areas,
(e) to protect the long-term commercial development potential of Parramatta City Centre.

37. Clause 16(c) defines the City Edge zone as “medium density mixed use zone, serving as a transitory zone between the core and nearby residential, open space and river foreshore areas”.

38. The plan’s objectives for the City Edge zone are set out in cl 19(1) in the following terms:

(a) to encourage a mixed use, medium density area that will provide a physical transition between the City Core and Retail Core zones and nearby lower density residential areas, and park and river foreshore areas,
(b) to encourage an increase in the permanent residential population through new residential development or the conversion of existing buildings and to ensure the maintenance of a range of housing choice,
(c) to encourage the provision of neighbourhood support services and facilities for the residential and working population,
(d) to protect and encourage accessible city blocks by providing active frontages to streets and a network of pedestrian-friendly streets, lanes and arcades.

39. Clause 25 sets out urban design objectives for the City Centre project and provides that “consent must not be granted for the carrying out of development unless the consent authority has given consideration to” those objectives. The following listed objectives are relevant to the subject proposal:

(a) the major facades and entries of buildings are to address major public places, such as streets, squares, parks and the river,
…
(c) buildings are to be built predominantly to the street alignment and side boundaries, and are to provide continuous street frontages for enhanced pedestrian amenity,
(d) buildings are to have regard to adjoining buildings and works with transitions of height, massing and scale, where appropriate,
…
(f) space allocated for vehicular entrances is to be minimised, with those entrances provided predominantly from lanes or centres of blocks,
…
(h) visual impact of car parking is to be minimised by the use of underground parking, and by screening above-ground parking from the street by locating the parking behind other active uses on street, square, park or river frontages,
(i) building bulk created by large unbroken expanses of wall is to be reduced by articulation and modulation,
…

40. Clause 26(2) deals with height of buildings in the following terms:

Height is the dominant control and has precedence over achievement of maximum floor space ratio for buildings in the City Centre Precinct.

The height of a building on any land is not to exceed the maximum height shown for the land on the City Centre Height Map, or, if the land is within a Special Area, the maximum height shown for the land on the City Centre Special Areas Map.

Any building on land in the Special Uses or Open Space zone is not to exceed a single storey in height.

41. Clause 27 deals with floor space ratios.

42. Clause 76 deals with flood liable land in the following terms:

(1) A person must not erect a building or carry out work on flood liable land except with development consent.
(2) Consent must not be granted for the erection of a building or the carrying out of a work on land to which this Plan applies unless the consent authority has taken into account whether carrying out of the proposed development would:

(a) be consistent with any interim flood policy or floodplain management plan adopted by the Council in accordance with the principles contained in the manual entitled ‘Floodplain Development Manual’ dated December 1986 (Reference No PWD86010),
(b) detrimentally increase the potential flood affectation on other development or property,
(c) result in, to a substantial degree, an increased risk to human life,
(d) be likely to result in additional economic and social cost to the community,
(e) adversely affect the environment of the floodplain by causing avoidable erosion, siltation, unnecessary destruction of river bank vegetation or a reduction in the stability of the river bank.

43. Clause 77 deals with excavation and filling of land in the following terms:

(1) A person may excavate or fill land to which this Plan applies only with development consent.
(2) When assessing an application for consent required by subclause (1), the consent authority must have particular regard to:

(3) subclause (1) does not apply to:
(a) any excavation or filling of land necessarily carried out to allow development for which consent has been granted under the Act, or
(b) any excavation or filling of land which is considered by the prospective consent authority to be of a minor nature.

44. Schedule 1 to the REP contains a comprehensive dictionary, the following items of which are relevant to this appeal:

Adjoining land means any land which abuts the land the subject of the development application concerned or which would abut the land if it were not separated from it by a public road.

Flood liable land means land which would be inundated by the designated flood and indicated as flood liable land on a map marked ‘Flood Liable Map’ deposited in the office of the Council of the area concerned.

Height of a building means the vertical distance measured in metres to the ceiling of the topmost floor from the horizontal plane at the average of the heights of the tops of the street kerbs nearest to each end of the street frontage of the building but:

Street frontage height of a building, in relation to a street to which the building has a frontage, means the vertical distance measured in metres at the centre of the frontage from the average of the street levels at each end of the frontage to the parapet level of the building. The parapet level is the horizontal plane in which at least two-thirds of the length of the top of the façade of the building adjacent to the street is situated.

45. The height map at the back of REP 28 indicates a maximum height for the subject site of 21m. The last attachment to the plan is the original version of Street Sections A and B. A relevant amendment (No.2 – Exhibit C3) was made to REP 28 on 20 July 2001. The height map in that amendment clearly confirms that the subject site is to have a maximum height of 28m, and that Street Section B applies to it. Street Section B requires an 11m minimum, and a 21.6m maximum, street frontage height on a 20m street, and then a 6.4m step-in, before a minimum step-up of two storeys, to a maximum height of 28m. Clause 26(2) makes clear that height is the dominant control.

DCP

46. As Bas points out (Exhibit C5), the Parramatta City Centre Plan incorporates both a DCP and a Public Domain strategy (Exhibit C4) to “complement and reinforce” the aims and objectives of REP 28. It was adopted by Council on 28 August 2001, publicly launched on 11 September 2001, and came into effect on 1 October 2001, relevantly soon after judgment was reserved in this matter. Weight must be given to it, but such weight is not determinative. See Carstens v Pittwater Council (1999) 111 LGERA 1 per Lloyd J.

47. The Council has been applying it, in draft form, in assessing building projects since January 2001 (see Attachment 7 to Exhibit C5).

48. Council’s objectives for the Parramatta City Centre are set out in s 4.2 of the DCP (Exhibit C4 p10ff). Object 4.2.4 is to “Develop a high quality urban environment in Parramatta”, and its particulars include:

…

(vi) Ensure that all development addresses the public domain including river frontages, streets parks and the like;

49. Section 6 (p14ff) deals with Built Form. Section 6.2 (p16) deals with Height in the following terms:

Controls
Street Wall Heights
1. Street wall heights (except George and Church Streets) are 21.6m (six storeys), where SREP 28 height controls allow.
Buildings are to reinforce the built definition of street edges by

- maximising street wall height or

- building to within one storey of SREP 28 street wall heights as a minimum;

Building Height And Floor to Floor Height
2. Building height is to comply with SREP 28.

50. The plan accompanying s 6 indicates in respect of the subject site “Continuous built edge along the public domain alignment – this is a compulsory build-to line. Build to the side boundaries in proximity to the street”. The public domain alignment is, of course, the front property boundary (T25.9.01 p18 L48).

51. Further details of build-to lines and setbacks appear in s 6.4 with an emphasis on “special definition of streets” and strengthening “the visual character of streets and adjoining parks”. Control No.2 in s 6.4 says “generally buildings are to build to the predominant street alignment”.

52. Section 6.5 deals with building articulation and, in respect of the ground floor of buildings, provides, inter alia:

5. Build predominantly to the street alignment. Refer to the Glossary.
6. Ground floor building articulation may not be greater than 300mm deep, and should be used to express door and window openings, recessed entries and the like. Refer to 6.4 Build-to lines and setbacks.

53. The Glossary (at pp119ff) includes the following definitions:

Build predominantely(sic) to the street alignment:
Means that the lower 3-6 levels of the building façade of a development must comply with the Build-to lines and Setbacks Control Drawing in this DCP. Refer to the definition of Street wall building in this glossary.

Coherent streetscapes:
Street spaces that are unified by dimensional qualities such as street width, setbacks and prevalent building footprint yet express some difference in terms of architectural expression.

Façade:
The face or front of a building.

Frontage
The alignment at the public street reserve at the front of a lot and in the case of a lot that abuts two or more streets, the boundary of which, when chosen, would enable the lot to comply with these provisions.

Height:
Refer to Height in the dictionary of SREP 28 to clarify vertical measurement, and inclusions and exclusions.

Parapet:
An upstand wall or barrier, placed at the edge of a platform, balcony, roof.

Setback:
The distance of the wall of a building from the site boundary, sometimes referred to as the alignment of a building.

Street wall building:
Helps define the spatial character of the street it edges. Street wall buildings collectively achieve a consistent built alignment along the edges of streets. In the Parramatta City Centre, some setbacks have been introduced to achieve consistent street alignments along streets with non-aligned front boundaries.

Streetscape:
The combination of elements that create the urban form of that street, including in the public domain elements such as kerbs and pavements, landscaping and street furniture, and private domain elements fronting the street such as building facades, awnings, gardens and the like.

54. Section 7 of the DCP deals with building types. The plan at p30 indicates that “Atrium/courtyard buildings are permitted on” the subject site, and the plan on page 32 indicates that towers are not permitted. “Tower” is not defined in s 7, or in the Glossary. The objective of s 7.4 on “Tower Building” is stated to be to “Encourage a varied skyline in the City Core with towers which punctuate the prevailing building height of 28m-36m, while preserving amenity in the public domain”.

55. Section 8 deals with Social and Residential Amenity, and s 9 with Pedestrian Access, Parking and Servicing.

56. In s 9.3, on On-site Parking, the following provisions occur in “Above Ground Car Parking”:

14. Above ground car parking is discouraged in the Parramatta City Centre;
15. The street frontages of the ground and first floor of above ground car parking must contain retail, commercial or other active uses. The proposed active use should suit the location of the site in the Parramatta City Centre to achieve an active street address. Refer to 12.4 Active Frontage and Address;
16. Above ground internal car parking must be located substantially behind the building alignment and be screened;
17. Above ground car parking is permitted to Torrens title dwellings and must be located behind the building line unless accessed via a lane or private street;
18. Minimum floor to ceiling height, clear of obstruction, for all multi-storey car parking, above ground level is 2.7 metres.

57. Section 11 of the DCP deals with Public Domain Interface, and s 11.8 (p75) with “Active Frontage and Address”. The relevant provisions of s 11.8 are as follows:

Active street frontage is characterised by lively pedestrian activity. Busy pedestrian areas and non-residential uses such as shops, studios, offices, cafes, recreation and promenade opportunities promote the most active frontages.

Objectives

Controls
1. Active frontage is defined as one or a combination of the following:

- entrance to retail

- shop front

- commercial and residential lobbies if accompanied by an entry and occupying less than 50% of the street frontage

- entries to upper level commercial and residential uses

- café or restaurant if accompanied by an entry from the street

- public building if accompanied by an entry

2. Establish active frontages

- at ground level along all streets, identified through block connections, and laneways indicated on the control drawing opposite

- along laneways with high pedestrian usage in the City Core

- along all other streets appropriate to proposed and nearby existing uses, and site location.

3. Active ground floor uses are to be accessible and at the same level as the footpath.
4. Outdoor restaurants, cafes and the like, are encouraged in the locations indicated on the control drawing opposite. Refer to councils Outdoor Dining Policy.

State Flood Plain Management Manual

58. The New South Wales Government’s Floodplain Management Manual, January 2001 (“the manual” - Exhibit C9), is a very comprehensive document.

59. Appendix G deals with the categorisation of land according to its level of hazard – high hazard means possible danger to personal safety, difficulty in evacuating by truck, difficulty for able-bodied adults to wade to safety, and potential for significant structural damage to buildings, whereas low hazard means that, if necessary, trucks could evacuate people and possessions, and able-bodied adults would have little difficulty wading to safety (see pG-2, sec G5, and Figure G2 on pG-3).

60. Appendix I sets out land use and development guidelines to be used in conjunction with the management plan. For land classified “low hazard - flood storage”, the relevant interim development guidelines appear in Table 12 (on pI-5), and are to be compared with those in Table 15 (on pI-8) for land classified “high hazard - flood storage”.

61. Appendix J deals with flood plain risk management measures. In the introduction the following point is made:

For convenience, the various measures have been described in isolation. However, a fundamental principle of good floodplain risk management is that risk management measures should not be considered either individually or in isolation. They must be considered collectively from within the all-embracing framework of a floodplain risk management study that allows their interactions, their suitability and effectiveness, and their social, ecological, environmental, cultural and economic impacts to be assessed on a community wide basis.

62. Appendix K deals with flood planning levels, which form a crucial component of flood plain risk management, as they are used to determine the extent of land subject to flood related development controls. “Land use usually varies across the floodplain, and FPLs may be different for different land uses” (pK-1):

In essence, flooding behaviour and the attributes of land use, namely the social, economic, cultural and environmental factors and the risk to life and property, lead to a set of feasible management options that form the basis for the selection of appropriate FPLs.

63. The manual intends that Councils carry out the risk management measures and work out the appropriate freeboard for a catchment (see p 23, and T37 LL7-9).

Council’s Flood Policy

64. A relevant flood risk management plan for Council’s area is under preparation at the present time, but, in the absence of such a plan, cl 76(2)(a) of REP 28 requires development to comply with Council’s policy for development of building on flood prone land.

65. Council’s current flood policy is Attachment 1 to Ms Sivakumar’s report (Exhibit C7). It reflects a risk management approach, and prohibits development within the 1:20 ARI flood level.

66. The most relevant content of the policy for this appeal are the following paragraphs of section (c):

The following policy be adopted by Council in respect of development of and building on flood prone land:-

…

…
(vi) Where developments involving new buildings or structures are approved on flood prone land above the 1 in 20 years flood frequency level the minimum floor level of such buildings or structures be 0.5 metres above the 1 in 100 year flood in the area, based on the latest available reliable information.

67. In cross-examination Sivakumar acknowledged that the “prohibition” on development in the 1:20 land has been in place since March 1987, if not March 1982. However, each case is assessed on its merits, on the basis of its flood compatible components in the improvements proposed, and numerous consents have been granted to 1:20 land.

68. Sivakumar outlined the method of flood assessment in order to arrive at appropriate flood compatible development for sites such as the subject site.

69. I turn now to consider the issues argued during the appeal.

Issues 1 and 3 - how to interpret and apply REP 28 and the DCP

70. Olsson was responsible for preparing the height and floor space ratio plans including Street Section B that now form part of REP 28.

71. He prepared the background report (Exhibit C12) which outlined the thinking behind the documentation in these regards. In answer to a question from me he indicated that the document in Exhibit C12 was not circulated as a public document but was “obtainable publicly” (day 2 T4 LL39-40). It was circulated to the relevant working group, and the Council planners were aware of it. Its contents had their origin in Olsson’s overseas experience and observation (largely Paris and Berlin):

…Street Section B which is based on urban design principles about space and form and the definition of public space by buildings, and how buildings are very fundamental to the formation or the definition of public space in the city … .

Buildings should be built to or close to the front building alignment …

Buildings which are built to the alignment define the street spatially but there are many other good reasons for doing it. They provide continuity between buildings, adjacent buildings, they allow for better pedestrian comfort by allowing for continuity of awnings and facades, for example. They mean that sidewalls of buildings aren’t exposed – of existing buildings aren’t exposed and therefore, you know, the space between the street alignment and the building tends to be – tends to often collect litter and isn’t well maintained because its, you know, beyond the footpath. There are a number of different issues about amenity and the appearance of the street which spin off from this question of street alignment”. (T5 LL26-57 – and see s 2.1.1 of Exhibit C12) .

72. Olsson’s expert statement of evidence (Exhibit C6) concluded:

The proposal does not comply with SREP 28 as

· The building does not provide a major façade and address to Kendall Street

· The building does not relate to the adjoining buildings in terms of building alignment and parapet height

· The above ground carparking has not been located behind active uses

· The proposal does not comply with Street Section B as required by SREP 28

The building façade on Kendall Street should

· Be built to the street alignment, without a set back of 1m as shown

· Be built as a masonry façade with windows on Levels 2 and 3, to a parapet height of 11m. The parapet should continue for the whole of the width of the lot.

The building façade on Parkes Street should

· Be built to the property boundary (notwithstanding the sliver of site adjacent to the street alignment which is not owned by the proponent)

· Avoid large openings and setbacks, particularly at the lower levels of the building

· Create a more continuous street frontage with the adjoining buildings and minimise the exposure of the side walls of existing buildings at street level

73. Essentially, Olsson contends that the current proposal, regardless of its architectural merits, does not comply with the controls in REP 28, especially clause 25(c ), the planning/design intention of which is for at least 50% of any street-fronting façade (not just a major c.f. minor façade – any street is a major public place) to be built, to its full required 11m height, on the street alignment of the subject land.

74. Neither façade of this proposal complies. While some “relief” or “articulation” in the façade is desirable, and may aid safe exit from the building by vehicles, or via fire exits, the proposed pergola cannot be part of the parapet or façade, which means that the Kendall Street façade has an effective height of only 8m (c.f. 11m). (See his oral evidence T7-21).

75. The objective of the new regime, especially Street Section B and other controls, is to create “interesting and cohesive streets … rather than interesting individual buildings” (T28 LL27-31), and Olsson acknowledged that the elements of the layout of the subdivision makes it difficult to achieve the REP’s objectives on the subject site – for example, a “sliver” of land separates some of the Parkes Street frontage from the street alignment.

76. While the court accepts the competence and sincerity of the applicant’s experts and their evidence, their contentions rest largely on false premises in that they consistently misconstrue the REP 28 controls. The court simply cannot accept that to build to the side boundaries, but consistently set back from the front boundaries’ can comply with a direction to build “predominantly” to both.

77. Both in their terms and on their face, the court would construe the relevant controls to mean what Olsson’s and Bas’s evidence asserts they were intended to mean, and not what the applicant’s experts want them to say or mean.

78. There is no doubt that the applicant can establish, on the evidence, that its proposal complies with the controls as it and its experts construe them, but the court found Olsson’s evidence most persuasive on the question of their proper construction.

79. While the court accepts Howieson’s stated commitment to the improvement of Parramatta’s built environment, and that his designs of both his own building and the subject proposal have substantial architectural merit, his and Caladine’s criticisms of Council’s plan-making processes, and its negotiations about the subject proposal, cannot change the meaning and effect of the relevant controls, which are markedly different from those which applied, until now, to buildings which were approved, under transitional provisions, after REP 28 was gazetted.

80. The applicant’s experts consistently nominate the Parkes Street frontage of the subject site/project as its “major façade”, but REP 28 clearly regards all street frontages as equally “major” – any street is a major public place in terms of REP 28. Caladine’s evidence about the construction and application of the height control to the Kendall Street frontage simply did not withstand Mr Gough’s cross-examination.

81. Caladine would also not concede that a building’s façade and parapets would generally be a solid finish, but did agree that generally most facades in various parts of Sydney are masonry. On that basis, the proposed pergola cannot be accepted as part of the Kendall Street façade, but, even if it could, the void in the design breaches the controls anyway (T71 L31-3).

82. The court has concluded, from the evidence and submissions, that the applicant and its advisors do not support REP 28, nor accept either its controls, or Council’s interpretation and application of it, as the appropriate regime to regulate development on this site. Their arguments on the merits of the subject proposal amounted, essentially, to a campaign against REP 28.

(Exhibit C5), criticises the subject proposal for not achieving the urban design requirements of REP 28, particularly, clauses 25, 26 (Street Section B), 76 and 77, and opines (p8):

… that by complying with Street Section ‘B’ raising the finished floor level above 9.4m AHD and introducing flood compatible design elements, the proposal may provide a suitable response to the site and its context.

84. Bas assesses optional solutions to the site and opts for a deletion of the tower. The building bulk and mass from the tower could be moved to levels 2 and 3 and the building could be reversed so that the articulated wall adjoins No.14 Kendall Street. Neither of those options as been acceptable to the applicant. Caladine says (T40 LL 30-34) that such a U-shaped design would result in “a much bulkier form of building in terms of mass, scale and you wouldn’t be able to achieve – it’d be a greater height than allowing less sunlight into that area, possibly overshadowing greater of both courtyards even” and would not be good for cross-ventilation.

85. Neither the Council nor the court presses any of the Bas options, but they were developed to satisfy the court that other building methods, if adopted, could alleviate some of Council’s major concerns with the proposal.

86. The court is not satisfied that the proposal properly addresses No.14 Kendall Street, even though, as presently designed, it addresses Howieson’s building on the other side. The court also is not satisfied that the proposed Kendall Street façade addresses the requirements that parking above ground level must be screened by active uses.

87. The court finds for the Council on all these urban design issues, and that would be a sufficient basis upon which to dismiss the appeal.

88. However, as the other issues were fully argued, I will move on now to deal with them also.

Issues 4 to 7 - the flood issues

89. Lucas in his oral evidence dealt with the differences between the approach of various councils to their flood planning tasks.

90. The manual leaves decisions on matters such as “freeboard” to the individual council involved.

91. Lucas concluded the subject site is “low hazard”, but Sivakumar relies on page G-4 of the Flood Plain Management Manual to arrive at a “high hazard” classification (T31 and 41).

92. “Freeboard” is designed more to facilitate movement of water under the proposed building, rather than its temporary storage.

93. The planning instruments are silent as to whether the freeboard should apply to all floors or only “habitable” floors. Habitable rooms are lounge, dining, rumpus, kitchen, bedroom in the residential situation, and offices, or storage areas for valuable possessions, in an industrial/commercial situation.

94. Lucas would expect 500mm freeboard to such habitable floors, but nil to carparks or foyers, while Sivakumar opines that, as freeboard must be determined under Council’s policy, Parramatta’s policy “clearly tells the minimum floor level should have half a metre freeboard, regardless of non habitable or habitable floor”. (T36 LL22-26).

95. Reference was made during the hearing to Council’s assessment and approval of a proposal at 33-35 Cowper Street Harris Park (Exhibit C11), which does not strictly comply with Council’s flood policy, but was permissible with consent under the City Edge zone of REP 28, and complied with the then draft DCP City Centre.

96. A Council project team concluded that that site was not a floodway, the proposal was in-fill development surrounded by existing development, that local controls promoted increased development in Cowper Street, and that the proposal would have no impact on existing flood behaviour. The team noted that the design of the building incorporated flood compatible elements.

97. The amount of freeboard in the Cowper Street project between the floor and the 1:100 year flood level was only 370mm (RL 10.40 cf 10.77m), but Council approved the project on 16 July 2001.

98. The freeboard proposed in the current application is only 150mm, but the Council also does not find the design flood compatible, in that some of the features of the proposed building will impede free flow of floodwaters.

99. The proposed development will be raised on piers, including foyer and carpark levels. Free flood storage is proposed within the subfloor area incorporating some earth excavation. The proposed finished floor level is RL 9.05m, negotiated up from the originally proposed RL 8.9m.

100. Lucas defends the compensatory storage on the basis that it does not matter whether it is on the bottom or the sides. It is a good practice to provide some sort of compensatory storage to make up for the space occupied by piers, beams, etc. (T57).

101. The Council does not support the compensatory flood storage proposed by way of excavation up to a depth ranging between 400mm and 800mm. The Council says that such a storage area will not function as a free flow storage area; that it will increase the flood potential within the site and the locality; and that flood waters will fill the storage area well before the end of the expected storm event, and not drain until well after the storm event.

102. The Council’s position is that the finished level of the lowest floor of the building should be raised above 9.4m, whereupon there may be no need for extra detention space to be achieved by excavation.

103. Council is also concerned that the proposed 0.15m slab thickness for the carpark floor is inadequate and should be increased to 0.25m.

104. In resisting these requirements, Lucas relied on the 1992-3 flood study, and further work by Dalland Associates in 1999, in respect of a previous DA for the subject site. Also Connell Mott MacDonald (“Connell”) in 2001 reviewed the work carried out by Dalland with regard to the current application. Connell concurred with the Dalland report to the effect that additional flood storage volume should be provided, and that adequate provision had been made for emergency response in a flood event.

105. Lucas records that the findings of both Dalland and Connell conclude that the proposed development as now modified takes into consideration the flooding issues, and does not impact on the adjoining properties, nor result in an increased risk to human life.

106. In the Connell report (s 2 p3) the following appears:

The potential flood damage for the site is low. The carpark area at Level 1 of the development is the only area that may be subject to flooding. Given the minimal depths, duration, velocity and likelihood of flood inundation the risk of damage to property is low. Flood proof construction will be adopted as a matter of course.

The expected low impact of floodwaters up to the 100 year ARI event for the development enables the flood hazard categorisation to be revised to a low hazard category.

107. Commenting on the proposed 150mm freeboard Connell says (p3):

This is considered acceptable and represents a low flood risk given the underlying conservative nature of the flood level estimation in addition the very short predicted duration of flood inundation.

108. Council’s earlier approval for the site did not require a 0.5m freeboard, but Sivakumar testified that Council made a mistake by not checking the Dalland report statements. Habitable floors are 12m up, but the Council 500mm freeboard policy refers to all floors.

109. As was clearly shown on the view, other developments in the block are elevated 1m above ground level, and comply with the 500mm freeboard requirement. Such elevation is achieved in combination with adequate off-street parking, hidden from the street by active frontage uses, and it is not unreasonable to expect the same of development on this site.

110. The court would dismiss this appeal also on the grounds that the proposal does not comply adequately with Council’s flood policy.

Issues 2 and 8 - Other merits issues

111. The other major concern of the Council is the incorporation of a small tower in the design, resulting in unsatisfactory overshadowing of the courtyard in No.14 Kendall Street. Likewise, the visual bulk impact complained of is the impact of viewing the proposed building, from 14 Kendall Street, particularly its tower structure on the Parkes Street frontage.

112. The relevant shadow diagram is DA10A (in Exhibit A1). The building at No.14 would be in “entire shadow” at 9am. Even at 12 noon serious shadow is indicated across the courtyard. “It is Council’s view that the solar access impact on particularly 14 Kendall Street, is something that by redesign could have been avoided, and we say that it causes a significant adverse impact on that development” (T23 L23-26).

113. On the question of overshadowing Caladine opines (at p26):

The proposed building will cast shadows towards properties located on the western and southern sides of the site. The amount of overshadowing cast is not considered to be unreasonable in a built CBD environment such as that of Parramatta….

114. Moving more bulk towards Kendall Street would also have an adverse impact on No.14, but, it would appear, not as serious an impact as the tower.

115. Towers are certainly “not encouraged” for this site by the DCP (T19 L20-24), and, on the evidence before me, this proposed tower does not effect or assist the intended “transition” expected of this “city edge” block by REP 28.

116. The court concludes that the tower component of the present proposal has unacceptable impacts on the neighbourhood.

Conclusion

117. As will be clear from what I have written, the court is satisfied that this appeal should be dismissed, and the subject development application determined by refusal of consent.

All exhibits may be returned.