The Motel Group Pty Ltd v Strathfield Council

[2017] NSWLEC 1227

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Motel Group Pty Ltd v Strathfield Council [2017] NSWLEC 1227
Hearing dates:	20 February 2017
Date of orders:	05 May 2017
Decision date:	05 May 2017
Jurisdiction:	Class 1
Before:	Martin SC
Decision:	See [64] below
Catchwords:	DEVELOPMENT APPLICATION – consent orders; residential flat development; resident objections; clause 4.6 variation application
Legislation Cited:	Apartment Design Guide Environmental Planning and Assessment Act 1979 ss 79(1)(c); 97 State Environmental Planning Policy (Affordable Rental Housing) Policy 2009 Strathfield Local Environmental Plan 2012 Strathfield Consolidated Development Control Plan 2005 – Part C: Multiple-unit Housing
Cases Cited:	Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Category:	Principal judgment
Parties:	The Motel Group Pty Limited (Applicant) Strathfield Municipal Council (Respondent)
Representation:	Counsel: Mr V Conomos (Solicitor)(Applicant) Ms C Morton (Solicitor)(Respondent) Solicitors: Conomos Legal (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	2016/317855
Publication restriction:	No

JUDGMENT

1. This appeal is brought pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) for consent orders in relation to the deemed refusal by the Strathfield Municipal Council (the Council) of development application DA2016/140. That development application seeks consent for the amalgamation of three allotments of land at 401-405 Liverpool Road, Strathfield (the Site), the demolition of existing structures on those allotments and the construction of a residential flat development containing 65 apartments and comprising three detached buildings.

2. The proposed apartment mix includes the following;

• 2 x studio apartments

• 21 x 1 bedroom apartments

• 37 x 2 bedroom apartments

• 5 x 3 bedroom apartments

• 10 of these apartments are dedicated as adaptable units

• 81 car spaces in 2 levels of basement carparking

• Areas of landscaping (including a rooftop garden) and communal open space

• 50% of the gross floor area is to be dedicated to affordable housing under the State Environmental Planning Policy (Affordable Rental Housing) 2009.

Site and Planning Context

3. The Site is described as Lots 1 and 2 in DP 784561 and Lot 3 in DP 650289. It has an irregular shape, with a frontage of approximately 52 m to Liverpool Road (east) (also known as the Hume Highway), a northern boundary of 115 m, southern boundary of 106 m and rear boundary of 29.19 m. Its total area is 4,380 m2.

4. The Town and Country Motel is currently located on the Site, as well as other buildings which have been constructed close to the Site’s boundaries.

5. It is surrounded by low to medium density residential development. Typically, these are single or two storey developments including town houses and detached dwelling houses. To the north of the Site at 397-399 Liverpool Road is a two storey townhouse development; to the north-east at 4, 5 and 6 Highfield Crescent are single and two storey detached dwelling houses, the rear yards of which abut the Site; to the east are a series of single and two storey dwelling houses at 398 – 412 Liverpool Road while to the south are 4 x 2 storey detached townhouse buildings at 407 – 415 Liverpool Road. At 1B, 3, 5 and 7 Gees Avenue there are single and two storey dwelling houses. To the Site’s west at 16 and 18 Cross Street are two storey detached dwelling houses, the rear yards of which abut the Site (in part).

6. Many residents have lived near the Site for many years, and have invested heavily in their homes. It is evident that there is a strong sense of pride in these dwellings. There was also a strong sense of community displayed during the site inspection.

7. The Site is zoned R3 – Medium Density Residential under the provisions of the Strathfield Local Environmental Plan 2012 (SLEP). Cl 2.3(2) of the SLEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

8. The objectives of that zone are to:

• Provide for the housing needs of the community within a medium density residential environment

• Provide a variety of housing types within a medium density residential environment

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

9. The proposed development, characterised as residential flat buildings, is permissible with consent.

10. The Application is required to be assessed under the provisions of the following key planning instruments:

Environmental Planning and Assessment Act 1979

Strathfield Local Environmental Plan 2012 (SLEP 2012)

Strathfield Consolidated Development Control Plan – 2005 Part C: Multiple-unit Housing

Apartment Design Guide

State Environmental Planning Policy (Affordable Rental Housing)

11. The Strathfield Consolidated Development Control Plan – Multiple Unit Housing sets out parameters of building envelopes, height and scale. The Objectives of Density, Bulk and Scale are:

1. to establish appropriate building envelopes for multiple-unit residential development throughout the Strathfield Municipality, while allowing flexibility in siting buildings;

2. to ensure that the amenity, character and environmental quality of the Strathfield Municipality is maintained by grouping together compatible residential development;

3. to clearly define appropriate site requirements for multiple-unit residential development; and

4. to encourage vertical, rather than stepped or terraced building forms, as appropriate to an area’s predominant built character.

The Application

12. The Application was lodged with the Council on 9 September 2015. It was publicly notified between 20 September and 15 November 2015, and generated a signed petition (with 44 resident signatures) and 17 separate letters of submission in opposition.

13. The issues raised by the resident objectors include the following matters:

• On street parking impacts and inadequate on-site parking

• Safety issues arising from the proposed driveway design

• Excessive building height and scale

• Privacy impacts and overlooking to adjoining residents

• Loss of natural cross-ventilation across the Site particularly from the East

• Reduction in value of properties in the vicinity of the proposed development

• Out of scale with other developments in the vicinity of the Site

• Non-compliance with the Council’s DCP

• No environmental site investigation

• Overshadowing of adjoining properties

• Adverse drainage impacts and inadequate stormwater retention

• Potential damage to the boundary fence and concrete driveway on the adjoining property at 397 – 399 Liverpool Road.

14. The Application had not been determined by the Council at the time that the Applicant lodged its appeal, on 25 October 2016.

15. After the deemed refusal of the Application, the Applicant made various amendments to the plans following discussion between the Applicant and the Council’s planning expert. These amendments are reflected in proposed consent condition number 1.

Consent Orders Hearing Requirements

16. In considering consent orders, the Court’s Practice Note – Class 1 Development Appeals at paragraph 36 (as it was at the time of the hearing) provides relevantly:

Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

I. the content of the proposed orders (including the proposed conditions of consent);

II. the date of the hearing by the Court to consider making the proposed consent orders; and

III. the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.

17. The Council confirmed that the objectors had received notification of the proposed consent orders and the draft conditions of consent, and were referred to the amended plans through a link on the Council’s website. Objectors were also provided with the opportunity to be heard at the hearing as required by the Practice Note. In the event a number of them took up this opportunity.

18. The Consent Orders hearing was held on 20 February 2017, starting on site with a site inspection, as well as a view incorporating neighbouring streets and the properties of nearby objectors. The objectors resided at Gees Avenue; Cross Street; Liverpool Road and Highfield Crescent. The hearing concluded in Court.

Clause 4.6 Variation Application

19. There is a non-compliance by the proposed development with the height development standard which is set out at cl 4.3(2) of the Strathfield LEP 2012. That clause establishes a maximum building height of 9.5 m for Residential Flat Buildings.

20. Clause 4.6 of the LEP provides flexibility in applying development standards to particular development.

21. Whether or not the Court has power to grant development consent in light of the building height exceedance is a threshold matter to consider. Only when this matter is resolved in the affirmative can the proposed development be approved, if indeed it is, upon a consideration of the merits: Wehbe v Pittwater Council (2007) 156 LGERA 446; NSWLEC 827 at [36].

22. Clause 4.6 requires that a consent authority be satisfied of three matters before granting consent to a development that contravenes a development standard:

• That the applicant has adequately demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case;

• That the applicant has adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard; and

• That the proposed development is in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

23. The Applicant sought an exemption from compliance with this standard through its written application (Exhibit D) invoking clause 4.6. The variation application is in the following terms.

24. The proposed development utilises the provisions of SEPP (ARH) to provide infill affordable housing in return for additional floor space outcomes.

25. The objectives of cl4.3 are:

1. To ensure that development is of a height that is generally compatible with or which improves the appearance of the existing area;

2. To encourage a consolidation pattern that leads to the optimum sustainable capacity height for the area;

3. To achieve a diversity of small and large development options.

26. At its highest point, building 3 (at the rear of the Site) reaches a height of 12.7 m (RL 49.7 to the lift overrun). The percentage of the variation is 3.2 m to the lift overrun, which is a percentage variation of 30% and 2.2 m to the roof parapet which is a 23% non-compliance.

27. The non-compliance of the rear building relates to a section of the 4th floor which consists of a portion of the 2 new dwellings at that upper level. The majority of other buildings have been designed to comply with the height control. There is also non-compliance arising from a pergola element within the rooftop terrace and vegetable garden, but this will not cast any additional shadows, and is set back within the roof form.

28. The Applicant says that strict compliance with the height standard is unreasonable or unnecessary in the circumstances of the case for reasons include the following:

• The proposed buildings are setback substantially further than the Council’s minimum setback requirements;

• The non-compliance with the height limit still provides a transition in building heights when viewed from the public domain or surrounding development;

• The strict application of the standard does not take into account the accessible location of the Site and the medium density nature of development in the immediate area;

• There will be little if any overlooking opportunities from bedrooms located within the additional height at the 4th level of the rear building;

• The difference in the extent of impact between a development that achieves strict numerical compliance would not significantly alter the overshadowing, privacy or acoustic impacts on adjoining properties. These impacts have been demonstrated to be within acceptable and compliant levels;

• The additional overshadowing by the height variation still maintains compliance with the Council’s solar access controls;

• The additional floor space (permitted by SEPP (ARH)) needs to be catered for within the development. The best design solution is to provide a portion of the additional floor space on the upper level of the development.

29. The environmental planning grounds justifying the variation of the height standard include that the proposal satisfies the aims, objectives and planning principles of the SEPP (ARH); the proposed non-compliance with height controls provide a building form and scale which acts as a transition in the height and scale of surrounding existing development; and the non-compliance with the standard does not result in a scale of building that is incongruous with the existing or desired future character of the surrounding built environment.

30. The public interest is served through the provision of more affordable housing, notwithstanding that local planning controls seek a more modest development outcome. The zone’s objectives are complied with. In addition, says the Applicant, the proposal does not adversely affect the amenity of the adjoining development, including compliance with solar access requirements. Moreover, says the Applicant, the design outcome of three distinct buildings is more sensitive and considered than a compliant built form which would create a longer, narrower building stretching across the Site increasing its visual bulk.

31. Based on the evidence before the Court, I am satisfied that in the circumstances, strict compliance with the height standard is unreasonable or unnecessary, and that there are sufficient environmental planning grounds to justify contravening the development standard. The development achieves on balance an appropriate environmental outcome having regard to all of the circumstances. Further, I find that the proposal is consistent with the relevant objectives for the height development standard and development in the R3 Medium Density Residential zone, and is therefore in the public interest.

Expert Evidence

32. Expert town planning evidence was provided to the Court by Ms Larissa Ozog for the Applicant, and Ms Kerry Gordon for the Council. Together they authored a joint expert report (Exhibit 6) and gave oral evidence.

33. Their joint report addressed the changes that had been made by the Applicant to address concerns with the development that had been raised by the Council. These concerns, and the responses to these concerns, are briefly set out below.

• Inadequate front setback

Amendments have been made to the plans to provide a minimum 5 m setback from the street frontage, and a mature spotted gum will be planted in the front building setback. This will lead to an appropriate streetscape setback.

• Inadequate floor space ratio calculations

The FSR calculation sheet has been updated. The amended proposal complies with the maximum FSR applicable to the development, when account is taken of the bonus FSR permitted for affordable rental housing under the SEPP (Affordable Rental Housing).

• Accessibility

The accessible car parking space has been relocated to be in close proximity to the lift core accessing the corresponding adaptable apartment; accessibility has been improved such that there is an accessible path of travel to and within the proposed buildings, and to and within the communal open space areas. An agreed condition limits the use of the rooftop communal open space to a garden for site residents.

• Landscaping

Calculation sheets for deep soil have been prepared. While no separate calculation has been provided for deep soil area with a minimum dimension of 6 m, the rear of the Site has soil with a dimension of 9m, and more than 6 m to the rear at the side. The portion of deep soil and communal open space satisfies the SEPP (ARH) and the Apartment Design Guide.

• Solar access

In response to concerns that the design did not provide 70% solar access for the new apartments as required under cl 14(1) of SEPP (ARH), amended shadowing information shows that the proposal provides adequate solar access.

• Inadequate information on proposed unit layout

Areas and dimensions of each bedroom, the proposed balconies and the area of proposed units have been included. The planners agree that notwithstanding that a small number of apartments have bedrooms of less than 10m2; this can be supported as the apartments comply with the minimum 50m2 area and have large living areas. There is suitable amenity for the apartments.

• Privacy

Privacy concerns have been raised with respect to the sides and rear boundaries for the proposed rear building and the adjoining property on that side of the Site, and between the centre and front buildings. Amended plans incorporate additional privacy measures to the sides and rear of the proposed buildings, particularly through the use of privacy screening. Amended architectural plans are required (by condition) which will show privacy treatments to specified apartments. The planners are satisfied that these measures will ensure suitable amenity for adjoining properties.

• Inadequate survey

An updated survey plan has been provided to allow for an assessment of shadowing and privacy impacts.

• Aesthetics

Amended plans have been provided which introduced additional use of face brick with a corresponding reduction of precast concrete to specified facades. This will result in an acceptable balance between precast concrete and face brick to provide suitable articulation, materials and colours which are appropriate to the desired future character of the area.

• Clause 4.6 objection

The amended clause 4.6 variation request provides a well-founded justification for the proposed variation of the height control (this is discussed above).

• Public interest

The Court has regard to objectors’ concerns pursuant to s 79C(1)(d) and (e) of the EPA Act. The Council’s original contention was that the application should not be approved having regard to the matters raised in the submissions received by Council insofar as those matters coincide with the contentions raised in its Statement of Facts and Contentions.

In their report, the experts opine that the amendments to the proposal have, in part, addressed the concerns raised in the objectors’ submissions. Further, the experts say that the concerns raised in the submissions that do not correspond to the contentions are not matters that are considered to warrant refusal of the application.

34. In conclusion, both experts were of the view that the proposal was acceptable.

Objector Concerns

35. Nine objectors gave evidence at the on-site portion of the hearing. For the purposes of this judgment, the objectors who gave evidence are referred to by number rather than identified by name. This is to preserve these residents’ privacy. Likewise, I have chosen not to record their addresses in this judgement. Suffice it to say they are all in close proximity to the Site at locations most of which I attended as part of the site visit. The main concerns raised by the objectors are noted, and the parties’ response in answer to them is noted below. Not every objection raised by every objector is reproduced here, as there was considerable overlap in the concerns raised. Likewise, not every objection raised was directly met by the parties, as they were not considered to found a reason for refusal of consent.

35. Objector 1: increased traffic flow, particularly in Cross Street, with associated safety risks; and traffic on Gees Avenue, and its intersection with Liverpool Road, given that in his view, Gees Avenue would be used for overflow parking. He was also concerned with the scale of the development being out of character with adjoining development.

36. Objector 2: expressed her main concern that the proposed development could devalue properties. She was also concerned about increase in traffic.

37. Objector 3: spoke on behalf of his parents, who were concerned about excessive scale and impact on their quality of life, and impact on their backyard.

38. Objector 4: her concern was with respect to the loss of sunlight to her property, as well as concern about a retaining wall on the site boundary of her property which may be damaged during the development. She also had a general concern about privacy and overlooking, as well as noise generated by traffic and spread of garbage on the street.

39. Objector 5: was concerned about traffic congestion, but was primarily concerned about privacy impacts into her rear yard due to the particular needs of her child, who suffers from anxiety. She did not accept that proposed privacy louvres would remove the sensation of being overlooked. A separate concern was the potential for water to run off the site at times of flash flooding, which also gave rise to a discharge of sewage (while outside the scope of the hearing, this matter was raised with the Council for investigation).

40. Objector 6: gave evidence on behalf of others (for whom English was not their first language). Their concern was the proximity of the proposed building to the boundary of their property, which meant that their redevelopment plans, on which they had spent considerable money, had been put on hold. Three storeys would face their common boundary, with a fourth storey setback (noting there is an 8 to 9 metre set back from the boundary fence).

41. Objector 7: a very long time resident, he was concerned that the proposal for a four storey building was dramatic and overwhelming, and balconies would overlook the backyard swimming pool. He suggested a stepped development.

42. Objector 8: was concerned about the development being out of character because of bulk and scale. She was also concerned about the noncompliance with the height standard. She also raised concerns that there was fill material on the site, leading to an incorrect calculation of the maximum building envelope. Other concerns were raised about: the accuracy of the shadow diagrams; privacy and overlooking; the potential for mosquitoes breeding in the on-site detention tank; high levels of carbon dioxide emissions from the basement car park because of the mechanical exhaust proposed; the absence of a traffic report; no assessment of impact on flora and fauna; concerns about the preservation of a particular tree on her property; lack of clarity about the fencing materials proposed to be used on the boundaries. She suggested a series of two storey dwellings as being more appropriate for the Site and the area, and the removal of the ground floor of building 3, resulting in a reduction of 7 units in the development.

43. Objector 9: lives with his wife, where they have resided for 46 years. He was concerned about overlooking (a four storey element would be 6 metres from his rear boundary), as well as an adverse solar impact, in particular on the extension of his house which faced his rear yard. There would be a loss of sun in midwinter, which would also affect other houses. He also raised concerns generally about bulk and scale, as well as traffic. He too suggested a stepped development.

44. The concerns raised by the objectors were responded to by the expert evidence adduced in the hearing. The Court was provided with the following evidence.

45. At the time of the initial application, traffic was assessed by the Council, and considered to be acceptable. Council raised no contention with respect to traffic generated by the proposed development. Amongst other things, in evidence the Council’s town planning expert raised the fact that the 47 room motel (with equivalent parking) is “around 90% utilised” so there would already be generation of traffic from the existing use and traffic movement. The traffic report prepared by TTM Consulting Pty Ltd (dated 27 July 2016 – Exhibit A) was referred to, which states in part that “[a]ssessment of the proposed development indicates that the development will not have a significant impact on the road network. No mitigating roadworks are required… Based on the assessment contained in this report, TTM… see no traffic engineering reason why the relevant approvals should not be granted” [T37:29 – 34].

46. As for concerns about possible stormwater impacts, these are dealt with via the proposed conditions at condition 38 through to condition 60. The Court was informed that the Council has no concern regarding adverse impact from drainage or stormwater runoff provided these conditions are complied with [T 38:45–50]. I note that it is appropriate and reasonable for the Court to rely upon a presumption that conditions, which are legally binding, will be complied with.

47. There is also a bio retention basin (a vegetated treatment) proposed as a fullback in the event of “the heaviest of downpours”, to supplement the capacity afforded by the on-site detention [T41:20].

48. With respect to privacy concerns, the Council’s expert spent considerable time explaining the manner in which she had assessed and recommended various privacy treatments to allay concerns of overlooking. Ms Gordon explained that the privacy screening condition specifies both the building where the screening is required as well as details about the direction in which the screens are to be placed; for example, to prevent looking downwards where the concern is with overlooking backyards [T 25].

49. Particular attention was paid to the concerns of Objector 5 to cater for the concerns of her child. In addition to specifically-sited privacy screening, to include a return around the corner of the most proximate balconies, changes will be made to the landscape plan requiring higher trees on the northern boundary (with the trees to be evergreen and not deciduous, to provide greater screening, to “hide” the building visually). The trees to be planted on the corner of the Site where it abuts the objector’s property will have advanced growth.

50. In addition to the extensive use of privacy screens, separation distances are also helpful in protecting privacy where screening is not available or does not have utility. In evidence, Ms Gordon expressly referred to situations where additional privacy treatments were not required (despite the concerns of residents) because of the separation distances involved [T27:42].

51. With respect to protection of trees raised by Objector 8, impacts on tree roots will be minimised by virtue of the setback of the location of the basement. Evidence was given that there will be no cutting work into the ground for 9 metres into the site for the basement, which would be well outside the structural root zone [T42:35]. Concerns about CO2 in the carpark are resolved through the inclusion of three ventilation shafts constructed and spaced evenly within the carpark.

52. The matter of fencing was raised by Objector 8. The Applicant, who will be paying for the fence, will agree to install a colorbond fence unless another material is agreed upon with the neighbour. This recognises the neighbour’s opportunity to have input into the type of fencing material to be used. There will also be a requirement for the fence to be installed and measured from the existing ground level on the Site.

53. In terms of site contamination, the Applicant pointed to one of two geotechnical reports submitted with the original application, which concluded that “the site is considered suitable for the proposed development and further investigation is not considered to be warranted”: T32:42.

54. The concern about impact on an adjoining retaining wall will be dealt with through the imposition of a condition requiring a dilapidation report.

55. Ms Gordon was also satisfied that despite some additional over-shadowing affecting some properties, solar access requirements will be met.

56. I am satisfied that the proposed actions satisfactorily respond to the concerns of the objectors. As to other matters raised by the objectors and not expressly referenced above, I do not find that any of these matters present any bar to the granting of development consent.

Conclusion

58. Despite the number of objector concerns, and the vigour with which they were pressed at the hearing, they provide no basis upon which I would refuse this application. Save for a relatively minor non-compliance with the height standard which is permitted through the clause 4.6 variation application, the proposal complies with the relevant planning framework, and meets the objectives of the zone. It provides for a substantial uplift in the number of affordable apartments available and makes effective use of land which lies across three separate allotments.

59. The parties have also carefully considered the objections raised by the objectors, and have proposed suitable conditions the purpose of which is to ameliorate these concerns. The Council’s position is that the objectors’ concerns have been addressed, or will be through appropriate conditions and amendments to plans. Further, it submits that there are no other concerns which would warrant refusal of the application. I concur with this view.

60. I note and welcome the offer from the Council’s solicitor to provide the objectors with a summary of their concerns, and how each of them will be addressed by the proposed conditions. This should provide those objectors with a level of assurance that their concerns have been listened to and addressed where possible within the scope of the proposed development.

61. The Court recognises that the medium density zoning of the Site immediately adjacent to long-established, single level dwellings of lower density will result in a degree of dissatisfaction from the existing owners. The Council has determined by the zoning in which the Site is located what is to be the desired future character of the area. This development is consistent with that desired future character. Over time the nature of the land use in the locality may well change, as the future character of the locality continues to take shape.

62. It is also noted that the balancing exercise required to be undertaken must recognise the bonuses which are allowed for under the SEPP (ARH), and that there is an overall public benefit arising from the provision of additional affordable rental housing.

63. In all the circumstances, having regard to the clause 4.6 variation application, which is accepted, the objectors’ concerns and the proposals to meet these concerns, I am satisfied that it is lawful and appropriate to grant consent to the proposal.

Orders

64. The orders of the Court are:

1. Leave is granted to the Applicant to rely upon amended plans and documents referred to in condition 1 of Part B of the Conditions of Consent attached and marked “A”.

2. The Clause 4.6 variation application in relation to the height control standard is upheld.

3. The appeal is upheld.

4. Development Application No. DA –2016/140 for the amalgamation of 3 allotments on land at 401-405 Liverpool Road, Strathfield, and the construction of a residential flat building containing 65 apartments and comprising 3 detached buildings is approved subject to the conditions set out in Annexure “A”.

5. The Exhibits are returned.

……………………………………..

Senior Commissioner Martin

317855.16 Annexure A (C) (250 KB, pdf)

Decision last updated: 05 May 2017