Sheesha (NSW) Pty Ltd v Canterbury-Bankstown Council

[2017] NSWLEC 1658

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sheesha (NSW) Pty Ltd v Canterbury‑Bankstown Council [2017] NSWLEC 1658
Hearing dates:	30-31 October 2017
Date of orders:	21 November 2017
Decision date:	21 November 2017
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The orders of the Court are:  (1)   The applicant is granted leave to rely on amended plans. (2)   No order as to costs. (3)   The appeal is dismissed. (4)   Development application Da/592/2016 for the demolition of existing structures and construction of a four storey hotel, commercial tenancy and basement car parking is refused. (5)   The exhibits are returned with the exception of exhibits 1, G and the Class 1 Application dated 9 March 2017.
Catchwords:	DEVELOPMENT APPEAL: Proposed hotel – practicality of proposed building height – streetscape presentation – pedestrian experience – street activation – variation to controls not warranted – siting of ground floor inappropriate in context – poor streetscape presentation.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007
Cases Cited:	Al Maha Pty Ltd v Marrickville Council [2013] NSWLEC 1072 Arnott v City of Sydney Council [2015] NSWLEC 1052 Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151 Weal v Bathurst City Council & Anor [2000] NSWCA 88 Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Sheesha (NSW) Pty Ltd (Applicant) Canterbury‑Bankstown Council (Respondent)
Representation:	Counsel: Ms S Duggan (Applicant) Mr A Seton (Respondent)   Solicitors: Mills Oakley (Applicant) Marsden Law Group (Respondent)
File Number(s):	2017/73880
Publication restriction:	Nil

Judgment

1. COMMISSIONER:    This appeal has been lodged in response to the deemed refusal by Canterbury-Bankstown Council of consent for a hotel and commercial premises. The applicant seeks approval for a four storey hotel, comprising 113 guest rooms and ground floor commercial. Parking is provided in a basement level below ground. The proposed hotel is split over two buildings, separated by a central courtyard area. The development is proposed at 433-437 Canterbury Road, Campsie.

2. Following the termination of the conciliation the applicant made amendments to the proposed development. The applicant was granted leave by the Court to rely on amended plans and documentation on 27 July 2017. These plans entail the following main changes:

1. an increase in floor to floor ceiling heights from 2.8m to 2.95m on levels 1 to 3;

2. deletion of loading docks and pedestrian ramps within the 3 metre front setback;

3. provision of an additional basement level 3;

4. increase in depth to the commercial tenancy;

5. deletion of the proposed use of the tenancy as a restaurant;

6. amendments to the building façade fronting Canterbury Road;

7. provision of additional information in relation to site contamination, building height, overshadowing, mechanical ventilation, traffic generation and vehicle emissions.

3. Further plans were tendered at the commencement of the proceedings that sought to incorporate the suggested amendments of the experts. The amended plans were not objected to by the Council and leave was granted. No order was sought in relation to any costs arising from the amendments.

4. On the basis of the plans and documentation before the Court, the contentions in relation to site contamination, front setback provision, allowance for a future parking lane, building depth, solar access, ventilation, traffic generation and vehicular access are agreed by the parties to be resolved.

5. However the Council maintains that the application should be refused on the grounds :

1. The application fails to respond appropriately to the planning controls that define a three storey built form in the Business Enterprise Zone;

2. That the development has an unacceptable streetscape presentation. Council argues that this arises firstly from the architectural design that sites the ground floor of the commercial space and the hotel foyer below ground level and secondly from the lack of façade articulation;

3. The basement design fails to accommodate the smallest commercial design vehicle required by the application of the planning controls and the relevant Australian Standard; and

4. The proposed development will not enable future road widening by the Respondent for a service lane at the rear of the site.

The site and its context

6. The subject site is legally described as Lot 1 in DP 1097521 and Lot 100 in DP 1041138 with a street address of 433-437 Canterbury Road, Campsie.

7. The land at 433-435 Canterbury Road is currently occupied by a two storey warehouse building and 437 Canterbury Road contains a single storey residential dwelling (formally utilised as a vehicle repair station).

8. The surrounding area is characterised by a mix of land uses such as warehouse, vehicle repair station, business, commercial, shop top housing and residential detached dwellings.

9. The location of the subject site is identified in the following aerial photograph:

Public submissions

10. No residents addressed the Court as part of the hearing.

11. The Council tendered submissions from two adjoining parties that raised the following issues in relation to the application:

1. the development is inconsistent with numerous background studies, proposals and strategies that have been undertaken of the land bounded by Canterbury Road, Una Street, Perry Street and Stanley Street;

2. the application does not incorporate a rear laneway;

3. the proposed vehicular access point along Canterbury Road would potentially create vehicle/pedestrian conflict;

4. the potential for adverse privacy impacts for properties in Perry Street arising from the development; and

5. the development presents as a 4 storey building which exceeds the applicable development controls.

Planning Controls:

12. The subject site has frontage to a classified road (Canterbury Road) and as such cl 101 of State Environmental Planning Policy (Infrastructure)2007 (‘SEPP Infrastructure’) applies.

13. Vehicular access to the site is provided via Canterbury Road and NSW Roads and Maritime Services provided concurrence to the development application with the following conditions:

“(1) All buildings and structures, together with any improvements integral to the future use of the site are wholly within the freehold property (unlimited in height or depth), along the Canterbury Road boundary.

(2) All ingress and egress from the site shall be by left in/ left out vehicular movements only. A raised concrete triangular island shall be constructed within the property boundary to channelise vehicular movements and restrict right turn movements into and out of the site. The triangular island shall be designed so that the largest vehicle accessing the site can enter and leave from the kerbside lane and does not cross the triangular island or to the other side of the access driveway. A swept path plan us to be submitted to Council and the Roads and Maritime for approval which shows that the development meets this requirement.

...”

The applicant seeks for the Court to vary the emphasised sections of part 2 of the conditions of concurrence (above) pursuant to Section 39(6A) of the Land and Environment Court Act 1979.

14. SEPP Infrastructure at cl 101(2)(c) requires the consent authority to be satisfied that:

“The development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located or designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.”

An Acoustic Assessment has been prepared by the applicant demonstrating the application is capable meeting the applicable internal noise guideline. This assessment relies on the windows to habitable rooms on the northern, eastern and southern facades being closed. The applicant has confirmed, to Council’s satisfaction, that the ventilation requirements can be achieved by mechanical ventilation through the use of plenum boxes.

15. State Environmental Planning Policy 55 - Remediation of Land (‘SEPP 55’) applies to the site. The requirements of cl 7 apply to the application. The Council is satisfied that sufficient information has been submitted to determine that the proposed development complies with the requirements of cl 7 of SEPP 55. The proposal is considered to satisfy the requirements of this policy.

16. Canterbury Local Environmental Plan 2012 (‘LEP 2012’) applies to the site. Pursuant to LEP 2012 the site is zoned B6 Business Enterprise Zone. Development for the purpose of ‘hotel or motel accommodation’ is permissible with consent in the zone. The application also seeks a ‘commercial premises’ on the ground floor which is a permissible use in the zone.

17. The objectives of the B6 zone are as follows:

“- To promote businesses along main roads and to encourage a mix of compatible uses

- To provide a range of employment uses (including business, office, retail and light industrial uses)

- To maintain the economic strength of centres by limiting retail activity

- To provide for residential uses, but only as part of a mixed use development

- To facilitate the revitalisation of Canterbury Road and create an attractive streetscape supported by buildings of a high standard of design

- To support urban renewal and a pattern of land use and density that reflects the existing and future capacity of the transport network.”

18. Part 4 of LEP 2012 contains principal development standards with clause 4.3 designating a maximum building height of 12 metres. The experts agree that the plans before the Court strictly comply with this development standard. Council contests the practicality of the development maintaining compliance with the maximum height limit during construction and as a result of the lack of detail in regards to the lift specified.

19. The development is subject to the requirements of Canterbury Development Control Plan 2012, amendment 3 (‘DCP 2012’). The following provisions of the DCP are relevant to the appeal:

1. Part 3: Business Zones

“Objectives for Business Centres

O1. Lively business centres accommodating a mix of retail, commercial and community activities, and catering to locals and the wider community, relative to their size and intended function.

O2. Long-term social and economic viability of business centres is maintained and they remain significant to the community for their individual character, ease of access, and urbane appeal.

O3. Retail and business activity is maintained at ground level to promote pedestrian activity and contribute to lively streets in centres

…

O5. Frontage type is appropriate for the location and will maximise activity at the public/private interface, and provides weather protection for pedestrians.

…”

2. Clause 3.1.1 Envelope Controls

“Note: Building envelopes define a three-dimensional form that limits the extent of a building. The height, length and depth of building envelopes are defined in metres. Building envelopes are at least 20-25 percent greater than the achievable floor area of a building.

Objectives:

O1: the form and shape of new buildings is defined by building envelope controls

O2: the appearance and performance of (the) development is an important consideration in designing, rather than building to the maximum building envelope

Controls:

i Building envelopes are defined by a combination of controls that include:

building height

building depth

building separation

building setbacks

side and rear setbacks to residential zones.

…

iii The maximum building envelope is not always achievable due to the need to comply with other requirements of the CDCP; as a general guide 75-80% of the specified building envelope will be achieved to allow for building articulation and the particular circumstances of the site or proposal.”

3. Clause 3.1.6 Height

“Objectives

O1 New buildings will have a scale that is visually compatible with adjacent buildings and heritage buildings, where this may require height of new development to be lower than the permitted height.

O2 Transition in scale and bulk from highest in the middle of centres to lower at the interface with residential zones and residential buildings.

O3 Greater guidance as to the required built form through the provision of maximum storey controls.

O4 Floor to ceiling height is adequate for the intended and potential use.

Controls

i Refer to the CLEP for maximum height of buildings in metres

ii For proposed new buildings in a traditional streetscape, the building height at the street wall is to be compatible with the height of adjoining and nearby two storey buildings.

…

Floor to ceiling heights

iii. Provide a minimum 3.3m floor to ceiling height for the ground floor.

iv. Provide a minimum 2.7m floor to ceiling height for residential floors.

v. Minimum car parking floor to ceiling height 2.8 m.

…

Floor to ceiling height – B6 zone Enterprise Corridor.

vii. A floor to ceiling height 3m per storey is required.”

4. Clause 3.1.8 Setback

“Objective

O1. Establish the desired spatial proportions of the street and define the street edge.

…

O3. Minimise building size and bulk by setting back upper storeys.

…

O5. Increased setbacks along Canterbury Road provide for possible future implementation of street parking and assist in reducing traffic noise impacts.

Controls:

i. Comply with the street level setback, number of storeys at the street level, and upper level setback in the following table.

Number of storeys at the street and setback	Upper level setback
B6 zone along Canterbury Road	1-3 storeys Minimum setback of 3m from street boundary	N/A

5. Clause 3.2.2 Street Address

“Objectives

O1 Positive interaction between the private and public domain

…

i Locate entries so that they relate to the existing street, subdivision pattern, street tree planting and pedestrian access network – for example ensure entries are not obscured by street trees or landscaping.”

6. Clause 3.2.3 Façade design and articulation

“Objectives

O1 Effective modulation and variation of building design to reduce the appearance of scale and mass, provide interest, diversity or emphasis, and provide a comfortable feel for humans

O2 All elements of the façade and roof are integrated into the architectural form and detail of the building

O3 To achieve an appealing streetscape appearance.

Controls

i. Facade controls apply to facades that are visible from the street - that may include an upper storey that faces a side boundary, or a façade that faces an internal driveway.

…

iv. Incorporate contrasting elements in the façade - use a harmonious range of high quality materials, finishes and detailing:

…

• Use a variety of window types to create a rhythm or express building uses and use recessed balconies and deep windows to create shadows, adding visual depth to the façade,

….

• Use colour, variation in the types of materials and arrangement of façade elements and materials to articulate different parts of a building façade - a material palette can include brickwork, rendered masonry, sheet materials, glazing, sandstone and treated metals and timbers,

• Incorporate horizontal and/or vertical elements, such as indentations in the façade plane, string courses and bandings, window openings and building entrances.

…

vii. Modulate the wall alignment with a step in of at least 1m.”

7. Clause 3.2.4 Façade Details

“Objective

O1. Vertical and horizontal building elements contribute to streetscape modulation and enhance the pedestrian experience.

Controls

Solid and void ratio

i. Do not allow balconies and voids to dominate publicly visible facades (excluding glass shop fronts and colonnades in business centres).

ii. Use a solid to void ratio in the vicinity of 50%, with each facade measured independently. Disharmony arises when the range of solid to void is extreme, such as fully glazed facades or those with multi balcony ‘egg crates’.

…

iv. Do not include shopfronts in the 50% solid to void ratio calculation.

Balconies

v. Use balconies in moderation and integrate them into the overall composition of the façade - do not use a monotonous or repetitive configuration of balconies.

…

vii. Use balcony types that respond to the street context, building orientation and residential amenity. viii. Use lightweight materials and construction for balconies.”

8. Clause 3.5.6 Creation of new lanes

“Note: In Appendix 3.1 new laneways are identified in some town centres. Laneways help to create development that is more efficient and reduce the amount of crossovers from the street frontage. Where sites are to be redeveloped and a new lane is identified over private land, creation of the laneway is required even if the laneway cannot be immediately utilised.

[the subject site is not identified in the relevant plans incorporated in the DCP]

Objectives

O1. To create a new rear lane system that will improve streetscape and pedestrian safety, and encourage active street frontages.

Controls (for sites being redeveloped)

i. Where creation of a laneway is identified an area of land 6m wide is required for the laneway. This land can be taken into account for the purposes of calculating setbacks:

ii. Where the laneway has resulted in the severing of land, concessions will be available to compensate for offset the loss of development potential through the development process.

iii. As these sites are amalgamated and developed they must create the lane to get full development potential.

…

v. The land forming the laneway must be subdivided and dedicated to Council prior to release of any Occupation Certificate (including an interim certificate). vi. The developer will be responsible for either construction of the laneway to Council’s specifications or paying a Developer Contribution for its construction. If the laneway is not immediately required then the land must be suitably paved. If not immediately required the land can also be leased from Council for a nominal amount and used for car parking or other suitable purposes.”

9. Part 6.8: Parking and Vehicle Access

“Objectives

…

O4. Servicing by larger vehicles occurs off‐street in such a way that reduces impacts on the pedestrian environment.

O5. Vehicle facilities are designed and constructed in accordance with relevant standards and are functional and safe”

10. Cl. 6.85 Relevant standards.

“Controls

i. Refer to RTA Guide to Traffic Generating Developments 2002, particularly in relation to parking analysis and traffic study preparation:

ii. All parking, and associated infrastructure, is to comply with Australian Standard 2890 Parking Facilities series, which includes:  

• AS 2890.1: Off‐Street Car Parking

• AS 2890.2: Off‐Street Commercial Vehicle Facilities

• AS 2890.3: Bicycle Parking Facilities

• AS 2890.6: Off‐street Parking for People With Disabilities.”

20. The DCP provisions are a mandatory consideration and a focal point of the assessment of the application (see Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167). However, s 79C(3A) of the Act mandates a flexible application of the controls where the alternative solution is capable of meeting the required standards (Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151).

Expert Evidence

21. In line with the issues in dispute in the proceedings the parties engaged experts in engineering, town planning, environmental health and traffic engineering.

The experts for the applicant were:

• Mr Shahab Rad - Engineering;

• Mr Giovanni Cirillo - Town Planning;

• Mr Giovanni Cirillo- Environmental Health;

• Mr Michael Lee- Traffic Engineering.

The experts for the respondent were:

• Mr Richard Weber - Engineering;

• Mr Scott Barwick - Town Planning;

• Mr Siva Sritharan - Traffic Planning

• Mr Paul Phillips- Environmental Health;

• Mr Elias Elias- Traffic Engineering.

22. Joint expert reports were prepared and filed in each of the disciplines. I have read and considered those reports.

22. At the conclusion of the joint conferencing process the experts reached agreement in relation to the following issues.

1. Food supplies and food storage;

2. The proposed gym; and

3. That on a “stand-alone basis” the structural drawings (22 Sept. 17) show viable slab and beam thicknesses and depths for the project and the structural certification is accepted (Exhibit 6).

4. The draft conditions incorporate the expert’s recommendations as relevant.

The issues

24. The fundamental issues for determination in this appeal are:

1. Does the application respond appropriately to the planning controls in regards to built form and streetscape presentation;

2. Is the development able to be appropriately serviced by commercial vehicles; and

3. Whether the development is required to enable future road widening by the respondent for a service lane at the rear of the site.

Does the application respond appropriately to the planning controls in its built form and streetscape presentation?

Built Form

25. The applicant argues that the proposed development is compliant with the maximum height of buildings standard in LEP 2012 (cl 3.1.6 (i)). In addition as it is not located in a traditional landscape, the applicant argues that there is no requirement for the building height at the street wall to be compatible with the height of adjoining and nearby two storey dwellings (cl 3.1.6 (ii)) (Exhibit A).

26. Whilst a 3m floor to ceiling height is sought by the DCP in the B6 zone (cl 3.1.6 (vii)), Mr Cirillo argues that the 4.52m floor to floor height of the ground floor and the 2.893m floor to floor heights of levels 1,2 and 3 are sufficient for the proposed use.

27. Mr Cirillo’s evidence is that the development meets the relevant planning controls, has ceiling heights that are compliant with the Building Code of Australia (BCA) and provide satisfactory amenity for the proposed use as a hotel (Exhibit 7). He argues that:

“There is no reasonable planning basis to require that a purpose designed building (such as a hotel) also be pre-emptively designed for its adaptive reuse for another unspecified land use at an unspecified time.

The detailed design and internal layout of the building in this case precludes its use for any other purpose and as such it is unnecessary to incorporate a higher ceiling height.

The proponent does not propose to use the subject building for (an)other purpose but should such a need arise, the proposal at that time should be assessed on its merits based on the applicable planning controls at that time (which change over time).”

(Exhibit 7)

28. Mr Cirillo identifies that the DCP control at cl 3.1.8 (refer paragraph 19(4)) states that land with the “B6 zone along Canterbury Road” must comprise “1 to 3 storeys”. It is his evidence that this control is inconsistent with the building height standard in LEP 2012. He argues:

“the proposal complies with the 12 m development standard for maximum building height under Canterbury Local Environmental Plan 2012 which lawfully prevails to the extent of the inconsistency with the recommended DCP limit.” (Exhibit 7).

He concludes that:

“the building has been carefully designed to comply with the 12m maximum height of buildings under LEP 2012, taking care to step the building to follow the existing slope of the land; whilst also providing adequate levels of internal amenity in all bedrooms for future occupants”. (Exhibit 7).

29. In contrast it is the evidence of Mr Barwick that :

“the DCP requires the provision of buildings with minimum floor to ceiling heights of 3.0m to ensure buildings are capable of accommodating a variety of employment and business uses.” (Exhibit 7).

Mr Barwick argues that the control seeks to encourage the longevity of the building by introducing flexibility in the types of uses that could be accommodated within it into the future. In his evidence he makes reference to objective four of the Building height clause (cl.3.1.6) which states:

“Floor to ceiling height is adequate for the intended and potential use.” (Exhibit 7).

30. Mr Barwick argues the 3.0m floor to ceiling height operates in conjunction with the provision for the maximum number of storeys (1 to 3), at cl. 3.1.8, to allow a building to be designed within the 12m maximum height limit that could accommodate a wide variety of uses. It is therefore Mr Barwick’s conclusion that the controls within DCP 2012 (at cl. 3.1.8) and LEP 2012 are not in conflict.

31. Mr Barwick raises further concern in relation to the levels of the proposed building as they relate to the natural ground level and the proposed uses within the development. His concerns are summarised below:

“The application proposes a four storey building and has pursued a series of devices in order to indicate a building that complies with the 12.0m building height control. The restricted floor slab mitigates the ability for services and the like to be concealed in ceilings requiring the use of under ceiling ducting and/or perimeter bulkheads. The approach to accommodate the fourth level requires the provision of hotel units with significant internal level changes in the southern block fronting Canterbury Road. The hotel rooms have an internal level change of 1.2m for the southernmost rooms and 600mm for the northern bank of rooms. These multiple steps in the slab limit the flexibility for adaption and alternative reuse of the building for land uses permissible in the B6 Enterprise Corridor zone.”

(Exhibit 7)

Lift

32. The applicant’s roof plans do not depict a lift overrun. Council contends that the applicant has not provided sufficient information to demonstrate the proposed lift is able to be sourced and that a lift over run is not required.

33. During the proceedings a lift specification from GLC Goods Lift Company was tabled as Exhibit J.

34. By reference to Exhibit J it is the evidence of Mr Turillo that the proposed lift is a traction passenger lift that does not require a lift overrun. In response to the concerns raised by Council, Mr Turillo argues that it is not usual for specific material and plant specifications to be provided at a development application stage. It is his evidence that this detail would be more appropriate at the Construction Certificates stage. He notes that the onus would be on the applicant to comply with the development consent. Therefore it is his evidence that it would be appropriate for any consent to be conditioned to require a lift that does not require a lift overrun.

35. Mr Barwick’s evidence is that if the development is built in accordance with the architectural plans (Exhibit G) and a lift is able to be specified that can service the development with no overrun, the building will not exceed the maximum building height.

Streetscape

36. In response to Council’s contention that it the building inappropriately sites the ground floor of the commercial space and the hotel foyer below ground level Mr Cirillo states:

“Due to the slope of the land, the ground floor commercial level is at a lower level to the existing pedestrian foot path. However, sight lines have been addressed such that there is a direct line of sight from within the tenancy to the footpath. The revised design achieves an active shopfront which is 2800mm high measured from footpath level to ceiling level, and with floor to ceiling heights of between 2800mm and 4320mm. Disabled access is achieved via a platform lift using the same dedicated access path for the tenancy parallel to (and behind) the 3m setback.”

(Exhibit 7)

37. In his evidence Mr Cirillo relies on the following architectural section:

38. It was Mr Cirillo’s oral evidence that the stepping of the floor plates in the hotel levels and the choice of floor level for the commercial space (refer cross section at paragraph 37) were created in part to facilitate compliance with the height limit. However he maintained his evidence that the streetscape outcome is acceptable.

39. Further it was Mr Cirillo’s oral evidence that the proposal achieves appropriate building articulation at the street interface through:

1. the setback of the upper level on the Canterbury Road façade of the building by 1.3m;

2. the use of architectural elements to frame the glazing on levels 1 and 2 fronting Canterbury Road;

3. the use of an appropriate ratio of solid to void in the massing of the front elevation; and

4. the utilisation of a range of materials.

On the basis of these characteristics Mr Cirillo concludes that the building is satisfactorily articulated and will have a positive impact on streetscape (Exhibit 7).

40. In the alternative Mr Barwick argues that the relationship of the commercial tenancy to the street is:

“poor with the tenancy and the lobby sunken below the footpath level.” (Exhibit 7).

It is Mr Barwick’s evidence that the proposed development has poor activation of the street, in particular because the access to the hotel reception and commercial space is below the entry level with access provided through a series of steps or a wheel chair platform lift. Mr Barwick argues that accessing the commercial space through a side door, below the footpath level does not achieve the DCP objectives for business centres, namely to have:

“retail and business activity maintained at ground level to promote pedestrian activity and contribute to lively streets in centres”. (Objective 03).

41. It is Mr Barwick’s evidence that a building of four storeys that complied with the planning controls in DCP 2012 for floor to ceiling heights would exceed the LEP maximum height limit of 12m. It is his evidence that DCP 2012 (cl. 3.1.6 vii) seeks a minimum ceiling height of 3.0m to accommodate a variety of potential uses. The application proposes a floor to floor height of 2.893m, with a slab thickness indicated at 150mm which is not compliant with DCP 2012. Mr Barwick argues that whilst the applicant seeks a variation to the control it is his assessment that the development fails to achieve the objective of the control to provide floor to ceiling heights adequate for the intended and potential use (cl. 3.1.6 Height, Objective 04). Mr Barwick argues that a variation to the control is not warranted.

42. Further it is Mr Barwick’s evidence that the proposal fails to provide appropriate articulation and variation in the presentation of the building to Canterbury Road. It is his oral evidence that the front façade of the development has an essentially flat presentation to Canterbury Road, with a lack of articulation or modulation of the building form itself. He argues the proposal places undue reliance on materials and colours to create interest in the front façade.

43. Mr Barwick argues that the location of the wheel chair platform lift behind a low wall, the monotonous glazed façade to the commercial unit and the provision of two ground floor rooms (GU07 &08) with sills at eye height results in an unacceptable ground floor presentation. He concludes that the development fails to meet the objectives of cl. 3.2.3 Façade Design and controls (iii), (iv), (vii), (xiv) and cl. 3.2.4 Façade Details objective 01 and the relevant controls.

Submissions

44. Ms Duggan submits that in the Court’s assessment the role of DCP 2012 needs to be considered with reference to cl 1.3 of the DCP which states, in part:

“…

Minor variations to the numerical controls specified in the CDCP may be acceptable, where it is demonstrated that such variations will have a minor impact and the proposed development is consistent with the aims and objectives of the CLEP and CDCP, and any other relevant documents. In considering a variation, Canterbury Council will consider the need to maintain the consistent implementation of the CDCP and the relevant provisions of the CLEP.”

45. Ms Duggan also argues that s 79C3A of the Environmental Planning and Assessment Act 1979 (‘the Act’) mandates that the consent authority is to be flexible in applying DCP provisions and allow reasonable alternative solutions that achieve the stated objectives of the standard in question.

46. Ms Duggan argues that on the basis of these clauses that seek the flexible application of the controls and the evidence of Mr Cirillo the Court should conclude that the objectives of cl 3.1.6 Height (refer paragraph ([19](3)) are achieved by the proposal. She argues the evidence supports a conclusion that the scale of the development is visually compatible, the floor to ceiling height is adequate for the intended use and the remaining objectives are not offended by the proposal.

47. In response to Mr Barwick’s evidence that the proposed variation to floor to ceiling height (cl. 3.1.6 control vii) will limit the range of uses able utilise the commercial and hotel levels in the future Ms Duggan argues:

1. the hotel levels achieve a floor to ceiling height that is deemed to be appropriate for permanent residential use;

2. there is no contention that the floor to ceiling heights are inadequate for the intended use; and

3. in the circumstances it is appropriate to apply the flexibility envisaged by s 79C3A of the Act.

48. In relation to the Council’s contention that the development is inconsistent with the storey’s control in DCP 2012 it is Ms Duggan’s submission that the development is compliant with the maximum building height in LEP 2012 and meets the relevant objectives of cl 3.1.8 Setback in DCP 2012. Namely the development has compliant setbacks to Canterbury Road (objective 1 and 5) and given the provisions in the controls at cl 3.1.8(i) that indicate an upper level setback is “not applicable” the development meets the requirements of objective 3.

49. Further Ms Duggan argues that the architectural presentation of the development responds to the controls at cl 3.2.3 Façade Design of DCP 2012 by utilising architectural elements to allow the development to read as a three storey building. She submits that the differing evidence of the experts in relation to the façade presentation is confined to a difference of expert opinion, not non-compliance with the controls. Given the diverse uses that are permissible in the B6 zone she argues that consistency in the streetscape will arise from the 12m height limit, not from the reading of stories in the streetscape. Ms Duggan submits that on the evidence of Mr Cirillo the objectives of the controls are met.

50. Finally in relation to street presentation Ms Duggan submits that at the point within the site of the 3 metre setback from Canterbury Road, the natural ground level of the subject site is lower than the street level. She argues that whilst the building does step down, the development provides a higher floor to ceiling height for the commercial space that allows for adequate sight lines into the commercial spaces.

51. Mr Seton submits that, on the basis of the evidence of Mr Barwick, the development fails to respond to the desired three storey built form sought by the planning controls. In particular Mr Seton argues that the LEP and DCP controls “work together” and establish the built form expected in the zone. In support of this conclusion he relies on the objectives of the height controls in DCP 2012 which state that the controls provide:

“greater guidance as the required built form through the provision of maximum storey controls”. (cl 3.1.6 DCP 2012)

It is his submission that whilst different forms of development and uses will occur within these parameters, in the current application the design proposed makes an unsatisfactory attempt to respond to the objectives of the controls.

52. Mr Seton submits that seeking to achieve four storey’s within the 12m maximum height limit has resulted in the following detrimental outcomes:

1. Setting the ground floor level of the hotel use and the commercial between 1.3 and 1.6m below the footpath level (refer paragraph [37]);

2. Up to three internal floor level changes within a single motel room through the use of internal stairs;

3. Non-compliant floor to ceiling heights; and

4. Provision of reduced head height within the basement level.

53. Mr Seton’s submits that the stepped floor plates proposed for the hotel levels and the non-compliant floor to ceiling height affect the ability of the development to be utilised flexibly for other permissible uses as envisaged by the planning controls. It is his submission that the applicant has not provided a considered and reasonable reason to vary the requirement to provide a minimum of 3.0 metre floor to ceiling heights (cl 3.1.6(vii) DCP 2012) and fails to meet the relevant objectives of the height control.

54. Further, on the basis of the evidence of Mr Barwick it is Mr Seton’s submission that the application fails to meet the objective 3 of the Business zone to maintain business activity at ground level to promote pedestrian activity and contribute to lively streets in centres (Part 3, DCP 2012).

55. Finally in relation to street presentation it is Mr Seton’s submission that the Court should accept the evidence of Mr Barwick that the proposal fails to meet the controls or the objectives of cl 3.2.3 Façade design and articulation. In particular Mr Seton argues that the Canterbury Road façade fails to achieve effective modulation and variation to reduce the mass of the building and provide a pedestrian scale (Objective 01) or to achieve a pleasing streetscape appearance (Objective 03) given the subterranean nature of the commercial space and the lobby. Mr Seton argues that these non-compliances arise from the applicants desire to sit below the 12m height limit which as an approach to the design has resulted in a poor street interface and insufficient height for an articulated roof design.

Findings:

56. I do not accept the evidence of Mr Cirillo that the LEP maximum height control and the DCP storey controls are in conflict. I am satisfied that the height of buildings development standard in LEP 2012 and the maximum number of storeys control in DCP 2012 for the site are consistent and compatible (Al Maha Pty Ltd v Marrickville Council [2013] NSWLEC 1072 [32] and Arnott v City of Sydney Council[2015] NSWLEC 1052 [55]).

57. Principally the applicant seeks a variation to the following controls in DCP 2012:

1. cl. 3.1.6: Height: (vii) Floor to ceiling heights in the B6 zone; and

2. cl. 3.1.8: Setback: (i) Number of Storeys in the B6 zone along Canterbury Road

58. In considering whether a variation to the DCP control requiring 3 metre floor to ceiling heights is warranted I have given weight to the range of permissible uses in the zone and the particularity of the hotel floor plate design proposed by the applicant. It is my assessment that it is unlikely that the hotel levels of the proposed building could feasibly be retrofitted to another permissible use due to their limited floor area and the range of internal levels within each room. The floor the ceiling height of the proposed commercial space ranges in height from 2.8m to 4.32m across the depth of the space. Notwithstanding my findings at paragraph [59-60] I am satisfied that the variation sought to the floor to ceiling height, on its own, would not be sufficient to warrant refusal of the application.

59. With the benefit of a site view and the evidence presented I find that the application does not warrant a variation to cl 3.1.8(i) namely 1-3 storeys. I do not accept the submission of Ms Duggan that it is appropriate to apply the flexibility envisaged by s 79C3A of the Act in this instance. My reasoning is as follows:

1. It is clear in Council’s objectives throughout the planning instruments that they seek to revitalise Canterbury Road. In particular the objectives of the B6 zone emphasise the role of development:

“to facilitate the revitalisation of Canterbury Road and create an attractive streetscape supported by buildings of a high standard of design”. (Refer paragraph [17])

2. I accept the evidence of Mr Barwick that the proposed design is compromised by the desire to achieve a four storey development within the mandated 12m maximum building height. I am satisfied that the “trade-offs” made within the design to achieve this yield fail to achieve the high standard of design sought by the zone objectives. In reaching this conclusion I accept the evidence of Mr Barwick at paragraph [41] and his reasoning.

2. I find that the application fails to achieve the objective 03 of cl 3.1.8 to minimise building size and bulk by setting back upper storeys. The façade design adopted extends the masonry frame devises above the middle level creating greater emphasis to the fourth storey of the proposed building. Given the limited setback of this upper level I am satisfied this approach is contrary to the controls and the objectives of DCP 2012.

3. I find that the proposed entry to the commercial space does not comply with the requirements of cl 3.2.2 Street Address, namely to locate entries so that they relate to the street. The pedestrian experience proposed by the application fails to meet the objective to create a positive interaction between the private and public domain.

60. On balance when considering if the proposed development is appropriate in the streetscape, I prefer the evidence of Mr Barwick and concur with his assessment. I have formed this view for the following reasons:

1. I agree with the evidence of Mr Barwick that the front façade has insufficient articulation and variation. The continuous glazing façade at the ground level results in a poor streetscape outcome.

2. The provision of pedestrian access to the site fails to activate the streetscape. The entries to the hotel foyer and commercial space being sited below the footpath level do not promote pedestrian activity. In assessing the cross section provided by the applicant (refer paragraph [37]) I am not persuaded that setting the level of the commercial space and the foyer below the footpath level is an acceptable solution. I am satisfied therefore that the development fails to meet objective 3 of the B6 Business Enterprise Zone, namely to facilitate revitalisation and create and attractive streetscape.

3. In relation to the articulation and variation of the buildings presentation to Canterbury Road I accept the evidence of Mr Barwick as detailed in paragraph [41] and conclude that the development fails to meet the objectives of cl 3.2.3 Façade Design and cl 3.2.4 Façade Details.

61. To be compliant with the maximum building height at cl 4.3 of LEP 2012 the application relies on a passenger lift that provides no lift overrun no greater than the height of the roof slab. In support of the design the applicant tabled a specification from GLC Goods Lift Company. The specification provided in Exhibit J does not indicate that no overrun is required for the lift specified. In his oral evidence Mr Cirillo indicated he had made no enquiry as to the specifics of the lift proposed.

62. On the basis of the evidence before the Court I accept the Council’s submission that the applicant has not provided sufficient evidence to demonstrate that a passenger lift suitable for the proposed development is able to be sourced that does not require a lift overrun. I find that the applicant has provided insufficient information to allow the Court to impose an operational condition in relation to the lift with sufficient certainty. Given that the installation of a standard passenger lift would result in a breach of the height limit, which is a mandatory provision, I am satisfied that the imposition of a deferred commencement condition requiring the submission of a specification or details lift that does not require an overrun defers an essential matter within the assessment of the application (Weal v Bathurst City Council &Anor [2000] NSWCA 88).

63. For the reasons in the preceding paragraphs, I am satisfied that the proposed works have an unacceptable impact on the built environment in the locality (s 79C(1)(b)) and inconsistent with the provisions of DCP 2012 (s 79C(1)(a)(iii)) where a variation is not warranted and the development warrants refusal.

Other contentions

64. Having found that the development warrants the refusal it is not necessary to deal with the other contentions in the proceedings.

Conclusion

65. For the reasons provided in the judgment, I am satisfied that the proposal warrants refusal.

Orders

66. The orders of the Court are:

1. The applicant is granted leave to rely on amended plans.

2. No order as to costs.

3. The appeal is dismissed.

4. Development application Da/592/2016 for the demolition of existing structures and construction of a four storey hotel, commercial tenancy and basement car parking is refused.

5. The exhibits are returned with the exception of exhibits 1, G and the Class 1 Application dated 9 March 2017.

…………….

D M Dickson

Commissioner of the Court

Decision last updated: 21 November 2017