State Projects Pty Ltd v Hurstville City Council

[2015] NSWLEC 1443

Land and Environment Court

New South Wales

Medium Neutral Citation:	State Projects Pty Ltd v Hurstville City Council [2015] NSWLEC 1443
Hearing dates:	6,7 October 2015
Date of orders:	30 October 2015
Decision date:	30 October 2015
Jurisdiction:	Class 1
Before:	Brown ASC
Decision:	1. The appeal is dismissed. 2. Development Application No. 2014/0865 for the demolition of an existing dwelling and structures and the construction of an in- fill affordable housing development at 3 Newman Street Mortdale is refused. 3. The exhibits are returned with the exception of exhibit 1.
Catchwords:	DEVELOPMENT APPLICATION: demolition of an existing dwelling and structures and the construction of an in fill affordable housing development - compatibility with the character of the local area – satisfaction with design quality principles relating to context, scale, built form, density, landscape, amenity and aesthetics - unsafe traffic movements
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 2012 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development
Cases Cited:	Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Texts Cited:	Class 1 Development Appeals Practice Note
Category:	Principal judgment
Parties:	State Projects Pty Ltd (Applicant) Hurstville City Council (Respondent)
Representation:	Counsel: Mr G McKee, solicitor (Applicant) Ms S Puckeridge, solicitor (Respondent)   Solicitors: McKees Legal Solutions (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	10018 of 2015
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No. 2014/0865 for the the demolition of an existing dwelling and structures and the construction of an in fill affordable housing development comprising of six terraced styled dwellings with basement parking at 3 Newman Street Mortdale (the site).

2. The development application relies upon the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) for approval.

3. The council maintains that the development should be refused because the development:

• is not compatible with the character of the local area,

• does not satisfy the design quality principles relating to context, scale, built form, density, landscape, amenity and aesthetics, and

• creates unsafe traffic movements.

4. The council also maintains that the development application should be refused as the application, before the Court, is unsuitable for approval given the large number of amendments needed to address some of the concerns raised by the council. The council contends that the use of deferred commencement conditions is an inappropriate method to make these amendments. The applicant disagrees and maintains that the use of deferred commencement conditions is appropriate.

The site

5. The site is a regular shaped allotment with three road frontages, being Newman Street, Ocean Lane and Cross Lane. The Newman Street frontage is 15.43m and the site area is 588.1sqm. The site has a cross fall across the width of up to 2m and the site also falls to the rear. A single storey dwelling with outbuildings to the rear is located on the site.

6. Residential development to the north-east and north-west is in a different zone to the site (R3 Medium Density Residential zone). On the opposite side of Ocean Lane are the rear of residential flat buildings fronting Ocean Street. On the opposite side of Newman Street is a three storey residential flat development.

7. Land to the south-west and south-east is in the same zone as the site (R2 Low Density Residential zone) and comprises single dwelling houses, dual occupancies and multiple dwellings with basement parking.

8. The land form in the locality falls from north-east to south-west.

Relevant planning controls

9. The site is located in the R2 Low Density Residential zone under the Hurstville Local Environmental Plan 2012 (LEP 2012). Clause 2.3(2) provides that the Court must have regard to the zone objectives when determining a development application. The zone objectives are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area.

• To ensure that a high level of residential amenity is achieved and maintained.

• To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment.

• To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity.

10. Hurstville Development Control Plan No 1 (DCP 1) also applies to the site.

11. SEPP ARH provides the opportunity for the provision of affordable rental housing. Part 2, Division 1 provides for in-fill affordable housing. Clause 13 provides for a bonus floor space ratio (FSR) and cl 14 provides standards that, if satisfied, cannot be a reason to refuse an application in relation to site area (cl 14(1)(b)), landscaped area (cl 14(1)(c)), deep soil zones (cl 14(1)(d)), solar access (cl 14(1)(e)), car parking (cl 14(2)(a)) and dwelling size (cl 14(2)(b)).

12. Clause 16A of SEPP ARH states:

16A Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

13. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (Amendment 3)(SEPP 65 - Amend 3) currently applies by way of cl 16 because the development is defined as a residential flat building due the extent of the basement level above ground level. However, as the development application was not determined before the coming into effect of SEPP 65 – Amend 3, cl 31(2) applies and states:

(2) If a development application or an application for the modification of a development consent has been made before the notification on the NSW legislation website of the making of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development (Amendment No 3) and the application has not been finally determined before the commencement of that amendment, the application must be determined as if the amendment had not commenced.

14. The relevant policy is then State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) where cl 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (RFDC) (cl 30(2)(c)).

15. If SEPP 65 did not apply, cl 15(1) states:

15 Design requirements

(1) A consent authority must not consent to development to which this Division applies unless it has taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, to the extent that those provisions are consistent with this Policy.

Character of local area

The evidence

16. Mr Brett Newbold provided evidence for the council and Mr Joe Rowling provided evidence for the applicant on this matter and the question posed by cl 16A. Both are urban designers. Mr Newbold provided a marked aerial photograph (Exhibit 8) that identified the area that he considered to be the “local area” for the purposes of cl 16A. In his oral evidence, he suggested that that this area could be further reduced at the end of Newman Street but the “local area” was largely represented by the visual catchment from the site. This area contained buildings from the R2 zone and R3 zone.

17. Mr Newbold states that development has minimal regard for existing or desired characters of the local area. Successive design amendments have incorporated forms and deep soil landscaping which demonstrate arbitrary responses to the site's dimensions and applicable development standards. The proposed setbacks and deep soil landscaping fail to express the significance of landscaping as a central element of this area's existing and desired characters.

18. Visual impacts are not alleviated by detailed design elements which display a heavy weight or visually-bulky character, including blade walls and balconies, the western entrance portico, and the uncommonly steep roof pitches at the front and rear of the building which contribute to the ungainly 'bastard' hipped roof. The two storey height at the rear of the proposed building and proximity to the rear boundary, are not compatible with existing or desired character. Height and proximity to the rear boundary are inconsistent with local controls which emphasise the importance of residential landscaping and which promote a distinct front-to-rear gradation of scale for multi unit housing developments.

19. From neighbouring properties to the south and south-east, the proposed 'wall of development' would be visually overwhelming, and aggregated impacts of six dwellings would have an impact on neighbor’s amenity.

20. Mr Rowling comes to a different conclusion. He states that the development has three public domain interfaces and reflects the local street hierarchy of Newman Street, Ocean Lane and Cross Lane, with the relative setbacks scaled accordingly, and reflecting the street typology.

21. In his opinion, the locality is clearly an area in transition with a mixture of detached dwellings, townhouse and strata flat buildings found in the local area. The proposal forms a transition between the detached townhouses to the south and large three storey development to Ocean Lane. The scale and bulk of the proposed development is modulated by an articulated roof line, dormer windows and balconies and varied landscape treatments to the front setbacks. The position of the proposed development on Ocean Lane provides an opportunity to present a positive frontage to the public domain, by presenting front doors to what would otherwise be a blank fence.

22. The development site is not a traditional lot with a narrow street frontage and long shared boundary and the principle of scaling back the development to the rear lane is not relevant and would lead to a poor built form outcome. The scaling of the built form addresses the local street hierarchy and reflects the transitional character of the local area.

Findings

23. Clause 16A provides that the Court must not consent to development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

24. The character test in cl 16A requires a determination of:

• what constitutes the local area?,

• what is the character of the local area?, and

• is the proposal compatible with the character of the local area?

What constitutes the local area?

25. Mr Rowling and Mr Newbold generally agree on the character of the local area, in that that the visual catchment defines the local area and this is represented by the red line on the aerial photograph in Exhibit 8. With the benefit of the site inspection, I am satisfied that the area should be extended, if only to the south west. This has the effect of including the town house developments in Newman Street and Victoria Street. Both developments also have a frontage to Cross Lane and are visible from the site or the footpath area outside the site. The town house development in Newman Street is only separated from the site by 6 properties and the Victoria Street development by 5 properties. The townhouse developments and the site are all zoned R2 Low Density Residential. This approach is consistent with the approach in Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 where the description of local area states:

…principally the visual catchment in which the development will be viewed... The wider catchment is also relevant..

What is the character of the local area?

26. Mr Rowling and Mr Newbold agree that there is no single architectural style which is a predominant feature of the locality as a whole. Specific characteristics of the local area comprise buildings within a 'private' landscaped curtilage; the landscape character of Newman Street is influenced by mature street trees; all building types comprise well-articulated forms that are capped by hipped and/or gabled roofs and development types display elements of a traditional street address such as front doors, balconies, habitable rooms, and / or front gardens that face the primary street frontages;

27. Nevertheless, clusters of older dwellings do occur, and these clusters predominantly comprise double-fronted buildings that are characteristic of the Inter-war era, sited in consistent positions behind front gardens, frequently with one wide side setback that separates adjoining buildings, and typically with substantial back yards that often accommodate sheds.

28. Compatibility with existing and desired characters depends upon quantitative measures - such as size of the proposed landscaped area, dimensions and scale of the proposed building - together with qualitative measures in relation to architectural and landscape design.

29. Future character of the locality will be determined by the local controls which permit various forms of multi-unit development that include multi dwelling housing.

30. I agree that this description is a fair and reasonable description of the character of the local area.

Is the proposal compatible with the character of the local area?

31. In answering this question, I have adopted the meaning of “compatible” as set out in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 where it states:

The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

32. I am satisfied that the proposed development is not compatible with the character of the local area. The site is at the interface with a higher density zone, being the R3 zone. The experts acknowledge that the existing character is 'mixed residential' with a diversity of residential densities, related building types and ages of construction or architectural styles, Even though parts of the design of the proposed building could likely be amended to be consistent with that anticipated by R2 zone, it lacks a consistent element in the local character that cannot be provided; that being a visible and meaningful landscape component. The inability to provide even a reasonable level of landscaping along Ocean Lane creates a hard edge to the most significant part of the development. If it is the applicants desire to create the principle frontage to Ocean Parade then it also carries an obligation to create an attractive streetscape appearance along this street. In my view, there could be a positive streetscape outcome from facing the pedestrian access and main facade of the development to Ocean Lane compared to a long side street wall if the development was orientated to Newman Street. I agree with Mr Rowley that the principle of scaling back the development to the rear lane is not the best urban design solution to the development of the site and would lead to a better urban design outcome than a more traditional approach.

33. While I ultimately agree with the conclusions of Mr Newbold I do not accept all his evidence. In my view, Mr Newbold placed insufficient emphasis on the likely future development in this zone. While much of the R2 zone near the site currently is single dwelling residential, it would be unreasonable to expect this form of development to continue into the future, given the range of higher density forms of development already constructed and permissible in the R2 zone. Also, any significant reliance on the architectural features of the existing residential flat buildings nearby to determine character is not appropriate given the age of these buildings. Clearly, the particular architectural features that should be used to determine character should be based on more contemporary designs.

34. In accordance with cl 16A, I find that the design of the development is not compatible with the character of the local area and as such the Court must not grant consent.

Design quality

35. The council raised a number of specific issues under the general heading of design quality. These included poor solar access, inadequate private open space, a 33m long façade to Ocean Lane, insufficient articulation, roof form, landscaped and internal amenity issues.

Solar access

36. Mr Anthony Rowan provided evidence for the council and Mr Jeffrey Mead provided evidence for the applicant. Both are town planners. The area of solar access was in dispute between the experts.

37. Clause 14(1)(e) of SEPP ARH provides that development consent cannot be refused “if living rooms and private open spaces for a minimum of 70 per cent of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter”. Non-compliance with this requirement does not mean the refusal of the application only that a merit assessment is required. Mr Rowan and Mr Mead provided an assessment of the solar access achieved for the dwellings based on plans that included the changes identified in the deferred commencement conditions.

38. Mr Rowan and Mr Mead prepared tables that identified the time that front and rear private open space areas and the living area received sunlight. Mr Mead maintained that 5 units (units 1,2,4 and 6 at the front private open space and unit 3 at the rear private open space) of the 6 units (or 83%) satisfy cl 14(1)(e) of SEPP ARH by providing more than 3 hours sunlight. For the living room, Mr Mead calculates that 5 units (units 4 and 6 achieve more than 3 hours (units 1 and 2 achieve 2.5 hours and unit 3 achieves 2 hours) out of the 6 units (or 83%) satisfy cl 4A of the ADG where the requirement is for 2 hours of direct sunlight in mid-winter for 70% of the units. Mr Mead argues that although this standard does not strictly apply because of the savings provisions in SEPP 65 Amend 3, it is nonetheless the most recent standard for solar access. Mr Mead also notes that some overshadowing comes from the existing tall buildings in the R3 zone that will affect any development on the site.

39. Mr Rowan disagreed. He calculates that only unit 6 achieves more than 3 hours of sunlight (17%) to the private open space area of the proposal. The amount of sunlight was insufficient to be of any benefit to the future occupants, for the other units. He described the amount of sunlight as only a “sliver” to some units. For the living room, Mr Rowan calculates that only unit 6 achieves more than 3 hours and unit 4 achieves 2 hours. He describes the reliance by Mr Mead on the overshadowing from the existing tall buildings in the R3 zone as not applicable in the calculation of solar access to private open space and living rooms. Mr Rowan maintains that the appropriate standard is that contained in cl 14(1)(e) of SEPP ARH.

40. In this case, I accept that Mr Mead has provided a reasonable basis to conclude that solar access is acceptable, but not optimal. I agree with Mr Mead that some allowance needs to be made where adjoining buildings cast a shadow over the site and impact on the solar access. Nothing can be done to change this circumstance. I am also satisfied that the approach of Mr Mead in considering solar access would be a benefit to future residents of the development in a sitting position rather than relying on the amount of solar access at ground level is a valid consideration. While the requirements in the ADG do not strictly apply, these requirements represent the most recent thinking on the provision of solar access for higher density forms of residential development and should form part of any consideration. Also, any concerns over landscaping limiting solar access in the rear private open space can be addressed through the specific form of landscaping.

36. With the shadow diagrams provided by the applicant, I accept that the amount of solar access to the private open space areas and the living rooms is acceptable and would not be a reason to refuse the application.

Private open space

42. Mr Rowan and Mr Mead disagreed on the necessary quantum of private open space and also its utility. Mr Mead states that the 25 sq m requirement in the RFDC is not appropriate given that the ADG now provides for 15 sq m, an identical figure required by the Infill Guidelines. In his assessment, and with the movement of the fence from its location 500 mm inside the boundary to directly on the boundary and the inclusion of the upper level balcony (in some instances), all private open space areas satisfy the 15 sq m requirement.

43. Mr Rowan notes that cl 15 (2) to of SEPP ARH states that the Infill Guidelines do not apply therefore any reliance on the 15 m² requirement cannot validly be made. Similarly the ADG does also not apply and again the 15 sq m requirement does not apply. Units 1, 2 and 3 have an area of private open space that is deficient under the RFDC. The RFDC requires a minimum area of 25 sq m and a minimum dimension of 4 m. Mr Rowan also disagrees with the approach adopted by Mr Mead as the total area should be able to be used by future residents. In the area relied upon by Mr Mead, Mr Rowan notes that this area includes the entry to the units and entry stairs with the consequence that the area available for private open space is even less than 15 sq m.

44. Mr Rowan maintains that the inadequate private open space for the units represents an over development of the site and sufficient to warrant the refusal of the development application.

45. On this matter, I agree with the conclusions of Mr Rowan but not for all the reasons he states. While the ADG does not strictly apply, it is also the most recent assessment of private open space needs and should be given weight. In accepting that the lesser 15 sq m could be an acceptable standard to adopt, rather than the 25 sq m in the RFDC, it follows in my view that the lesser area should fully function as an area where the occupants can recreate. I do not accept that the 15 sq m.area should have any other purposes, such as an entry way or have stair encroachments. Even allowing for the fence to be moved back to the boundary (and assuming that an adequate footpath could be constructed), the private open pace areas are inadequate for units 2, 3, 4 and 5. While Mr Mead suggested that unit 2 would achieve the required 15 sq m when combined with the rear courtyard, I do not accept that the provision of private open space is simply a mathematical exercise but importantly requires the area to have some utility for future occupants. As the rear courtyard is less than 2 m wide, it cannot reasonably be said to contribute to the private open space area for this unit.

46. The inadequacy of the private open space is a significant inadequacy in the development and is sufficient to refuse the application for this reason alone.

Façade to Ocean Lane

47. Mr Rowan and Mr Mead agreed that a 3 m setback to Ocean Lane was acceptable although there was some disagreement about how this elevation could be treated without encroachments into the setback. The replacement of first floor balconies with juliette balconies was discussed and some agreement reached. Mr Mead acknowledged that more articulation is needed given the 33 m length of this façade.

48. I am satisfied that further articulation of the building could be undertaken to provide an acceptable streetscape appearance from Ocean Parade, including the provision of juliette balconies on the first level. I am also satisfied that the use of Ocean Parade as the principal street frontage for the site is the appropriate design philosophy, when compared to a different design philosophy that simply uses this street frontage as a side boundary and adopts Newman Street as its principal frontage.

Roof form

49. Mr Newbold described the roof form as an “”ungainly “bastard” hipped roof”” because of the two different roof pitches within the same roof form. Units 1 and 2 have a flatter pitch whereas units 3, 4, 5 and 6 have a higher pitched roof to accommodate storage (units 4 and 5 where each have storage area of 6.7 sq m) and study’s (unit 5 of 6.7 sq m and unit 6 of 9.2 sq m) in the roof space. Mr Rowling acknowledges that the storage areas in units 3 and 4 appear to have insufficient head room and the dormer windows and access stair should be removed. Mr Rowling also states that the two study’s in units 5 a 6 have adequate height for access and use as storage areas.

50. I agree with the concerns expressed by Mr Newbold on the roof form with different pitches. It is overly clumsy in its appearance, when compared to the large range of typically consistent pitched roofs in the vicinity. With the evidence of Mr Rowling that the storage area is for units 4 and 5 should be deleted, I see no reason why the irregular roof form should be maintained for only units 5 and 6, particularly as they are only suitable for storage (rather than study’s), based on the evidence of Mr Rowling.

Landscaped area

51. Clause 14(1)(c)(ii) of SEPP ARH provides that development consent cannot be refused “if at least 30 per cent of the site area is to be landscaped”. Non-compliance with this requirement does not mean the refusal of the application only that a merit assessment is required. Mr Rowan relied on DCP 1 (at pt 4.3.2.10) where 20% of the site area (117.62 sq m) must be provided as landscaped area. Excluding areas less than 2 m in width based on the definition of landscaped area in LEP 2012, Mr Rowan calculates that the proposed development has a landscaped area of 14.4% (85.08 sq m). Mr Mead states that by including planted areas with a width of less than 2m and planter boxes over the basement carpark, the proposed development has a landscaped area of 18.96% (111.48 sq m), which he considers is acceptable.

52. On this matter, I accept the conclusions of Mr Rowan. The areas included by Mr Mead (areas with a width of less than 2m and planter boxes over the basement carpark) are the exact areas that can be used to provide canopy trees and more substantial landscaping to add to the character of the local area. I agree that the inadequacy of landscaped area is a symptom of an overdevelopment of the site, particularly when the standard in cl 14(1)(c)(ii) of SEPP ARH requires at least 30% of the site area is to be landscaped, if only to satisfy the deemed to comply provisions.

Internal amenity

53. Mr Newbold, in his oral evidence, was critical of the development in relation to room size, circulation space, potential location for furniture and inadequate storage within some bedrooms. Mr Rowling identified a number of amendments in the joint statement with Mr Newbold to address some of the issues raised of Mr Newbold.

54. Clause 30 of SEPP 65 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)). The relevant principle is Principle 7:Amenity:

Principle 7: Amenity

Good design provides amenity through the physical, spatial and environmental quality of a development.

Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility.

55. In this case, I agree with the conclusions of Mr Newbold. It appears to me that the internal amenity of particularly units 1, 2 and 3 have been unacceptably compromised due to the need to accommodate the driveway and consequent head room to the basement carpark from Cross Lane. In the words used in Principle 7, I do not accept that the proposal encapsulates good design through the physical, spatial and environmental quality because of the inefficient layouts and room dimensions. The ground floor of unit 1 is to be used as a kitchen, dining room and living room within an area of 4.2 m x 3.4 m. The first floor area contains two bedrooms (one of which is to be deleted by way of a condition of consent) and a bathroom and is larger than the ground floor as it cantilevers over the proposed driveway. This level also provides a wall that leads to the balcony adjoining bedroom 1 and appears to serve no purpose.

56. The ground floor of unit 2 has a similar area to unit 1 but has less usable space with a “dead” space adjoining the stair and even more restricted space for the living area. It is not clear how the area designated as kitchen/dining could be used for these activities given the limited space and odd shape.

57. Unit 3 is marginally larger than units 1 and 2 although the designated living area has a significant indentation caused by the stairs leading from the basement carpark. As with unit 2, it is not clear how the area designated as kitchen/dining could be used for these functions given the limited space and odd shape.

58. I also accept the comments from Mr Newbold that the plans do not show sufficient storage or even how a wardrobe would fit into some of the bedrooms.

59. The poor internal amenity is sufficient for the refusal of the application for this reason alone.

Access

60. Safe access to the underground parking area was in dispute between Mr Robert Varga for the applicant and Mr Craig McLaren for the council. Mr McLaren maintains that there is insufficient sight lines and an unacceptable gap time for vehicles entering Cross Lane from Ocean Parade and vehicles leaving the basement carpark. Mr McLaren states that the most desirable access location, from a safety point of view, would be from Newman Street. Mr Varga disagrees and states that the adequate sight distance and safety is provided with the proposed location to the basement carpark.

61. The significant between Mr McLaren and Mr Varga centres on the likely speed of vehicles entering Cross Lane (which is one-way) from Ocean Parade. Mr McLaren and Mr Varga agree that if the speed was 10 kph then adequate stopping distance of 8.34 m was available however Mr McLaren maintained that the appropriate speed was 15 kph. On this basis, a stopping distance of 12.5 m is required. As the access driveway is around 10 m from the corner, there is inadequate stopping distance. Notwithstanding these figures Mr McLaren also stated that a Safety Audit of the access would conclude that the location of the access driveway was unsafe.

62. With the benefit of the site inspection and having personally negotiated the corner of Cross Lane and Ocean Parade in a car, I agree with the conclusions of Mr Varga. The intersection is tight because of the narrow carriageway of both Cross Lane and Ocean Parade. It is not an environment that would encourage fast driving and when combined with the improved sight lines for cars leaving the site from the splays on the building and the one–way direction of traffic along Cross Lane, I am satisfied that the safety of the access would not be a reason to refuse the application.

Too much, too late?

63. Ms Puckeridge, for the council, submits that the applicant has been granted leave on three occasions for amended plans and that there are still a large number of further changes to be made. These changes are proposed as deferred commencement conditions by the applicant. The plans currently before the Court are Revision U plans. Ms Puckeridge maintains that the continual changes make it difficult for her witnesses to fully understand the changes and any consequent impacts.

64. Mr McKee, for the applicant, submits that changes to plans are consistent with normal Court processes and also consistent with the disposal of the proceedings in a “just, quick and cheap” manner. He submits that the use of deferred commencement conditions is an appropriate way to deal with the additional changes.

65. The Class 1 Development Appeals Practice Note (the Practice Note) commenced on 14 May 2007. Clause 3 identifies the purpose as:

3. The purpose of this practice note is to set out case management procedures for the just, quick and cheap resolution of development appeals.

66. Clauses 27 and 28 of the Practice Note relevantly states:

Amendments to applications and to statements of facts and contentions

27. Subject to paragraph 7, an applicant for consent may not rely on an amended development appeal application including amended plans unless it first obtains the leave of the Court. Applicants for consent should ensure that their development appeal application is suitable for assessment at the hearing before commencing the development appeal, (my emphasis) including ensuring plans satisfy the requirements in Schedule A. Multiple requests for leave to amend applications (including plans) cause unnecessary delay and cost for all parties and should be avoided.(my emphasis)

28. If an applicant for consent wishes to amend its development appeal application, including by amended plans, the applicant is to consolidate all such amendments (to avoid multiple requests to amend) and apply for leave as soon as reasonably possible and usually no later than 10 days after the facts or circumstances which prompted the application for leave came to the attention of the applicant. Examples of such facts or circumstances are the receipt of a report of a parties’ single expert or a joint report of parties’ experts

recommending modification of the proposed development, which recommendation the applicant wishes to adopt in whole or part.

67. The Practice Note accepts (not unreasonably) that an applicant will rely on their application plans lodged the appeal and that these plans will be suitable for assessment at the hearing. The Practice Note contemplates that amendments may occur following the receipt of expert evidence but also provides that any amended plans may not relied upon without leave. Inherent in this process is that minor amendments may be made during the hearing that do not require amended plans but essentially “fine tune” the development appeal application lodged the appeal or the amended plans where leave has been granted.

68. While the Practice Note does not limit the number of applications for leave to amend, the Practice Note reasonably concludes that numerous applications can “cause unnecessary delay and cost for all parties and should be avoided”. Numerous applications could also be seen as being inconsistent with the need to have a development application that is “suitable for assessment at the hearing”. The appeal process should not be seen as a “design workshop” where different design approaches are tested against the council’s expert witnesses to see what may be suitable. Doing so would effectively permit the applicant to ameliorate impacts by relying on expert advice at the council’s expense and not the applicants. Clause 27 of the Practice Note places an obligation on the applicant to come to Court with a design that they consider appropriate for approval.

69. In this case, and despite three successful applications for leave to amend and other iterations of the design (Rev U plans), the further amendments proposed as deferred commencement conditions of consent sought changes that make any assessment difficult. Some of the changes proposed as deferred commencement conditions of consent include:

• Amendments to elevations and roof plans to include details of the proposed basement car park mechanical exhaust, along with potential noise levels generated;

• the general access stair case from Ocean Lane to the basement car park to be amended to ensure appropriate levels of accessibility for the purposes of a stair lift, as depicted on the plan;

• plans to be amended to accurately reflect existing survey levels of the site and on land to the south west in Newman Street and where necessary, retaining walls designs to reflect the required additional survey levels.

• bedroom 2 of unit 1and the roof form above to be deleted

• the general accessible stair needs to be redesigned to:

1. not obstruct the required width of footway to Ocean Lane;

2. provide an additional step between Ocean Lane and the landing to unit 3; and

3. ensure adequate headroom below unit 3.

70. The applicant’s urban designer Mr Rowling, in his joint statement with Mr Newbold, also suggested a number of amendments that could markedly change the internal amenity and external appearance of the development. These changes included:

• the design of unit 3 is to flip the entrance stair and front door to potentially allow for a dedicated zone for a table and four chairs,

• removal of the downstairs toilet to resolve the issue with the dining rooms in units 4 to 6 as being narrow corridor spaces,

• removal of the downstairs toilet to resolve the potential conflict with the kitchen benchtops in units 4 and 6,

• removal of the rear recess to the upper floors of units 2 and 3 to increase the bedroom size and allow for a space for storage in the rear bedrooms,

• attic rooms to units and 6 have dimensioned at over 2.4 m floor to ceiling and would provide adequate height for use as storage,

• attic rooms to units 3 and 4 have insufficient head height and the dormer windows and access stair should be removed,

• further refinement of the access from all dwellings to the basement stair to resolve any head height issues and potentially allow the access to be contained within the curtilage of the proposed development,

• review the access arrangements as insufficient provision has been made for disabled access to unit 3,

• the architectural elevations could be further refined to reflect the three pairings of units 1 and 2, 3 and 4 and 5 and 6 thereby providing a series of different treatments and visual variation,

• the portico to unit 6 could be removed and the Newman Street elevation refined to provide a more symmetrical elevation, and

• removing dormers and attic floors to units 3 and 4 would help to denote the prominence of the Newman Street and Ocean Lane corner.

71. As submitted by Ms Puckeridge, late and numerous changes to plans can significantly place experts at a disadvantage. In this case, the council’s planning expert, Mr Rowan is an experienced town planner and was able to adapt to the changes although I accept that he may have reached the limit of his experience (and patience) when asked to consider complicated shadow diagrams based on the changes in the deferred commencement conditions but without the benefit of any architectural plans that reflected these changes.

72. In matters such as this it would not be difficult to expect that the amount of changes make it very difficult or even impossible for an expert to provide the necessary evidence to satisfy their obligations under the Uniform Civil Procedures Rules 2005 and the Expert Witness Code of Conduct.

73. While the foregoing comments has not formed part of my reasoning for the refusal of the application, it does provide an indication that such a course of action goes close to being an abuse of the Courts processes.

Orders

74. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 2014/0865 for the the demolition of an existing dwelling and structures and the construction of an in fill affordable housing development at 3 Newman Street Mortdale is refused.

3. The exhibits are returned with the exception of exhibit 1

75. ________________

76. G T Brown

77. Acting Senior Commissioner

Decision last updated: 30 October 2015