Trend Living Pty Ltd v Northern Beaches Council

[2019] NSWLEC 1617

Land and Environment Court

New South Wales

Medium Neutral Citation:

Trend Living Pty Ltd v Northern Beaches Council [2019] NSWLEC 1617

Hearing dates:

25-26 November 2019

Date of orders:

11 December 2019

Decision date:

11 December 2019

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Orders of the Court are:

 

(1) The appeal is dismissed.

 

(2) Development application No DA2019/0135 for the construction of an additional five units and nine mezzanine areas within approved units is refused consent.

 (3) The exhibits, other than exhibits A and C, are returned.

Catchwords:

DEVELOPMENT APPLICATION: industrial units, breach of height development standard, amenity impacts

Legislation Cited:

Warringah Local Environmental Plan 2012;

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Wehbe v Pittwater Council (2007) 156 LGERA 446

Category:

Principal judgment

Parties:

Trend Living Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
Dr J Smith (Applicant)
Solicitors:
McKees Legal Solutions (Applicant)
Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/102387

Publication restriction:

Nil

Judgment

1. Trend Living is currently constructing an industrial complex and had lodged a development application that seeks consent for an additional six industrial warehouse units with mezzanine levels, construction of mezzanine levels in nine of the approved industrial warehouse units and a reduced building identification sign above the Villiers Place entrance.

2. The council had not determined the application within the prescribed period and Trend appealed its deemed refusal. The Council continued to assess the proposal and its Planning Panel refused consent on 29 August 2019.

3. Since that date the applicant has amended the plans and the proposal is now for an additional five units and nine mezzanine areas within approved units.

4. The contentions in the case go to the height of the additional work and associated impacts on views from nearby residential properties.

5. The decrease in size of the identification sign is not opposed by the council as it says this has positive impacts to view corridors.

The site and its context

6. The site has frontage to Middleton Road, Inman Road and Villiers Place and comprises seven allotments. It is irregular in shape with a combined area of 11,626m2.

7. A partially constructed warehouse development incorporating retaining walls and stormwater infrastructure stands on the site. That development is the subject of a development consent issued by the council in 2008 and modified on 15 December 2008. Subsequent to those consents, the applicant amalgamated the land to which that consent applied with adjoining sites that now form the whole site. Consent to that proposal was granted by the Court following the parties reaching agreement in a Conciliation Conference held in 2018. It is that consent (current consent) that forms the basis of the works currently being constructed on the site.

8. The lower level of the development will comprise strata titled storage units accessed off the intersection of Inman and Middleton Roads with 24 industrial warehouse units on the upper level accessed off Villiers Place. A ramp provides vehicle connection between the two levels.

9. The site is bound by natural rock outcrops and a vegetated escarpment which runs along the northern and eastern boundaries of the site. That area will be retained in its natural form with trees and scrub and the units setback from the boundary due to the significant slope of the site along the escarpment which rises between 10 and 20m.

10. A natural drainage channel previously ran centrally through the site. It has been diverted in association with previous approvals and connects to council’s existing water infrastructure.

11. The lots adjoining the site to the south and west are zoned and used for industrial purposes and generally accommodate older style industrial development and warehouse facilities.

12. Land adjacent and to the north and east are zoned for low density residential development and contain detached dwelling houses of varying age and scale. Those dwellings to the north are located well above the site at the top of the escarpment with views over the property in a southerly and westerly direction to a district view.

13. A public pathway incorporating stairs runs along the site’s western boundary with a small public reserve located between adjoining industrial buildings fronting Middleton Road and those houses to the north that front Parkes Road and Gilmore Avenue.

14. There are a total of seven properties zoned residential in Villiers Place at the eastern end of the cul-de-sac. Villiers Place rises from the site in an easterly direction so the houses are elevated above the site. Some district views are available over the site and adjoining industrial properties. There are also a further two industrial premises that separate the site from those dwellings on the northern side of Villiers Place with factory units on the southern side at the bend in the roadway and a freestanding factory to the immediate north of that complex.

Background and the proposal

15. The current consent authorises construction of the two level complex. As stated above, the lower level comprises a series of self-storage units and the upper level a total of 24 industrial warehouse units. All of those units are accessed off a common forecourt that is formed from the concrete slab that divides the upper and lower sections of the development. The slab forms both the ground floors of the units and the associated carparking and vehicle manoeuvring areas. A total of 61 tenancies would be provided.

16. The plans before the Court seek consent for the construction of an additional five units in an area approved for parking under the current consent and the installation of mezzanine floors within seven of the units, thereby increasing the height of those units.

17. Proposed units 62-66 would be located in one building to the south of the northern most building with all loading bays located along the southern wall in an attempt to address acoustic concerns raised by residents and the council. Unit 66 would have a lower ceiling height (4.5m) than the remainder of the units and a planter box is proposed along its western wall. Building height of that building would be RL39.45 at the north-western corner, RL39.85 at the south-eastern corner and RL38.75 at the south-western corner.

18. The proposed mezzanines would be installed within the central and southern buildings in units 53-61. The roof level over those warehouses would increase to RL40.65.

Planning controls

19. The site is zoned IN1 General Industrial under the provisions of Warringah Local Environmental Plan 2012 (LEP). The proposed development is permissible with consent under that plan.

20. Part 4 of the LEP contains Principal development standards. The only development standard applicable to the IN1 zone is clause 4.3 Height of buildings. A maximum building height of 11m applies to the site. The applicant relies on an objection to that development standard pursuant to the provisions of clause 4.6 of the LEP.

21. Part D9 Building Bulk in Warringah Development Control Plan 2011 (DCP) is relevant to the contentions and application. The objectives of that control are:

• To encourage good design and innovative architecture to improve the urban environment.

• To minimise the visual impact of development when viewed from adjoining properties, streets, waterways and land zoned for public recreation purposes.

22. The requirements of the clause are:

1. Side and rear setbacks are to be progressively increased as wall height increases.

2. Large areas of continuous wall planes are to be avoided by varying building setbacks and using appropriate techniques to provide visual relief.

3. On sloping land, the height and bulk of development (particularly on the downhill side) is to be minimised, and the need for cut and fill reduced by designs which minimise the building footprint and allow the building mass to step down the slope. In particular:

The amount of fill is not to exceed one metre in depth.

Fill is not to spread beyond the footprint of the building.

Excavation of the landform is to be minimised.

4. Building height and scale needs to relate to topography and site conditions.

5. Orientate development to address the street.

6. Use colour, materials and surface treatment to reduce building bulk.

7. Landscape plantings are to be provided to reduce the visual bulk of new building and works.

8. Articulate walls to reduce building mass.

The issues

23. The contentions in the case are the building height is excessive; the development will result in unreasonable amenity impacts on nearby properties and is not in the public interest.

Evidence

24. The hearing commenced on the site of the proposed development with a view taken of the surrounding locality including the stairway adjacent to the site’s western boundary that links Middleton and Inman Roads to Parkes Road.

25. Evidence was heard from objectors who reside in Villiers Place. They expressed concerns regarding view loss, particularly district views, bulk, scale, excessive height, non-compliance with the planning controls and traffic and parking. The Court was taken onto two properties to allow observation of the site and likely impacts and was assisted by frames that had been erected on the site to delineate location of walls.

26. Expert town planning evidence was heard from Ms S Francis for the applicant and Mr D Milliken for the council. They agree that the existing approved built form exceeded the building height development standard with a maximum height of 16.55m or 50.45% above the 11m maximum.

27. The also agree:

1. The proposed additional warehouse units 62-66 have a maximum building height of 16.65m, a variation from the development standard of 51.36%.

2. The proposed additional mezzanine levels to warehouse units 53 to 61 have a maximum building height of 15.04m, a variation of 36.72%.

3. The current consent was approved with a variation to the maximum building height under the provisions of clause 4.6 of the LEP with a maximum height of 16.55m or a variation of 50.45%.

4. The proposed new warehouse units are located in what is the lowest part of the site for the purposes of calculating building height.

5. The additional warehouses are the same or lower than the maximum height at RL40.65 and RL38.75 at the lower point.

6. The current warehouses are being developed with an elevated floor level of FL34.25. The proposed units would have the same floor level.

7. There is no disruption of privacy or solar access because of the height variation.

8. The additional 5 units are visible to the public from the top half of the walkway to the west of the site with units 65 and 66 most visible.

9. The additional mezzanine levels are visible to the public from the top half of the walkway to the west of the site.

10. The additional 5 units will be visible from parts of the surrounding residential properties and from the top half of the walkway to the west of the site with units 65 and 66 most visible.

11. As approved, the development is built to the boundary of the walkway and presents as a wall of a height varying form approximately 3m to 11m. Regardless of height the wall is above the head height of a person travelling up the walkway until a person reaches the top half of the stairs.

12. As approved, the development provides landscaping at RL34.25 as it adjoins the stairway to soften the visual impact of the proposal.

13. The maximum height of the approved development is RL41.2 however, this element, being the building fronting Villiers Place adjacent and to the east of the site entry, is almost entirely underneath the 11m height limit as the land is near its highest point adjacent to Villiers Place.

14. The consolidated site has a unique topography in the surrounding area and there are variable and varying existing ground levels.

15. The proposed development will not have any impacts on the adjoining residential properties to the north and east of the site in relation to overshadowing and privacy, and a minor impact to the district views.

16. The visual impacts from the private and public domains are a key concern.

17. The upper ground level of the approved development is at RL34.25 and it does not slope up or down with the topography below.

18. The existing approved development and particularly the most northern warehouse units 38-42 form part of the surrounding and nearby development which the proposal should be compatible with.

19. The existing height breach of the existing development is only for a small portion (being the northern most warehouses).

20. The rear of units 57, 58 and 59 are visible from Middleton Road.

21. There is no adverse impact on the scenic quality of Warringah’s coastal and bush environments.

22. The amended plans remove the opening of the warehouse units 62-66 from facing north (towards the residential boundary) and relocate them onto the southern elevation. This will reduce acoustic and light spill issues from these additional units.

23. The carparking proposed would satisfy the council’s planning controls.

28. The experts do not agree on whether the height and bulk of the development is appropriate; the written objection to the development standard should be upheld; the objectives of the IN1 General Industrial zone are met; there are any adverse amenity impacts, in particular visual impacts or if the proposal is in the public interest.

29. Mr Milliken says the new elements are almost entirely above the 11m height limit and will have additional impacts on the private and public domain. The topography of the site is not so varied, steep or undulating so as to make compliance with the development standard impossible or unreasonable. The existing development positioned the highest warehouses (in terms of height, not RLs) around the rear of the site where the land starts to step up and where they can be “nestled” below the escarpment. The proposal seeks new warehouses and mezzanine elements in the centre of the site and nearer the street frontages which in not consistent with the built form on the northern side of Middleton Road.

30. He says this design will add additional bulk where it will be highly visible from the private and public domains and that the development should step down with the topography not ignore it. The requirement for the lower floor level to be 300mm above the overland flow path may be sufficient to justify a minor (i.e. 300mm) height variation but not a 6.74m non-compliance. In his opinion, the development will give rise to adverse visual impacts and the loss of views from adjacent residential properties and the public domain.

31. Mr Milliken says the topography of the site is not so unique as to make compliance with the standard unreasonable. A development that includes limited breaches of the height limit has already been approved that took into account the topography of the site and positioned the highest units on the highest point of the site. While the percentage variation to the height standard is only slightly more than that previously approved, the amount of floor space that is now proposed above the height limit is much greater.

32. Mr Milliken says there is nowhere in the surrounding area of the wider Cromer industrial area with such a large amount of floor space exceeding the height limit and says there are only two structure that do, a heritage listed tower and the storage silos of a nearby concrete batching plant, both of which have small footprints. For this reason he says the development is not compatible with the height and scale of surrounding and nearby development and does not minimise visual impact or disruption of views due to the fact that the additional visual impact and view loss is a direct result of the breach of the development standard. He says there will be some loss of views from No 11 Villiers Place and that view loss is a direct result of the height breach. While that impact is not devastating, there is some impact.

33. Ms Frances says the site is already developed with warehouse units at RL34.25 and the proposal seeks to construct an additional 5 warehouse units towards the northern part of the site, adjacent to the existing most northern units 100mm higher than those units. The location of the proposed units are at a point where the existing ground level is at its lowest being RL24 and as a consequence, whilst the actual physical height of the proposed units is lower than those units approved under the existing consent, because the ground level at this point is lower, there is a breach of the height standard and the breach is numerically greater than that previously granted.

34. Because the site has an undulating topography with two street entries there is some 8m difference in height with the existing ground level varying significantly within the site. Ms Francis says this is also due to the fact that the site had been excavated prior to the submission of the application so that the distance between the currently built level at the upper ground level (RL34.25) is now greater from ‘existing ground level’. Regardless of which, the additional units remain at the same floor level as the existing development and of a height less than that already built and approved.

35. In her opinion, the height of any building on the site needs to be measured not only numerically having regard to the standard but also contextually having regard to the objectives of the standard. Nothing limits floorpace or density and the existing and approved development that is being constructed form a substantive context within which the proposal is viewed. The proposal is both lower than the existing approved development but also higher than the height development standard however is comparable and compatible with the scale and height of surrounding development being the units at RL34.25. When viewed from Villiers Place, Inman Road and Middleton Road, if visible, the proposal is comparable and compatible with other buildings of similar height and scale.

36. Ms Francis agrees that the additional units will be visible from the top of the stairs on the western side of the site but only when descending those stairs and only through the existing and proposed landscaping. She considers the impact acceptable in the context of the existing buildings on the site and says that merely seeing the units does not in and of itself render them unacceptable nor unreasonable.

37. Similarly, Ms Francis says that it is only the mezzanine to units 57, 58 and 59 that can be seen that are above the height limit by 4.04m however, they sit in the context of compliant and approved building heights with no detrimental impact. The eastern edge of the mezzanine to unit 53 would be visible from Villiers Place but given its setback from the street she says any visual impact is minimised. The mezzanines to units 56 and 57 are also visible and built to a maximum height of RL40.65 and when contextually viewed against the approved building of units 50 and 51 that are under the height limit in that location at RL41.20 she says they are both compatible and comparable in scale and bulk of nearby approved development. She says there is no loss of view, privacy, overshadowing nor visual bulk since the buildings now follow the visual alignment of the approved unit 52.

38. The mezzanines to units 57, 58 and 59 where they breach the building height development standard are not visible from Inman Road but are from Middleton Road facing east. Ms Francis says in the context of the scale and form of surrounding and approved development, of which the subject site forms a significant part, the height and scale of the breach is compatible with nearby development. Likewise, there is no loss of view, solar access or overshadowing.

39. Ms Francis notes there is no maximum floorspace ratio for the site and the objectives to the height standard do not go to density or maximum built form capacity but rather they relate to maintaining and minimising environmental and visual impact.

28. At present, Ms Francis says the area to accommodate the additional 5 units is approved as a lit parking and manoeuvring area and the location of those units would address light spill concerns raised by residents to the north. The units would be viewed as the same as those already approved.

29. The experts share similar views to that stated above in regard to the bulk of the building.

30. In regard to any likely precedent that would arise if consent is granted, Mr Milliken says the topography of the site is not so unique as to eliminate the establishment of a precedent and cites an objection letter received from the owner of No 20 Inman Road (contained in Exhibit 1 Fol 91-92).

31. That property is sandwiched between the site and complies with the building height development standard. The correspondence filed with the council indicates that the owner would seek approval of additional building height on that site if consent was granted to this application.

32. Both experts agree that any application that sought to vary a development standard would have to be considered on its merits and that the circumstances of this site are different from No 20 however Mr Milliken says that the approved form of development on the site must be considered in relation to any future applications that may be received for adjoining land. Accordingly the amount of floor space approved above the height limit would establish an undesirable precedent for future development tin the Cromer Industrial area and other industrial areas within the wider Northern Beaches local government area, if established.

33. Ms Francis says the site has an agreed variable topography and no precedent can be created unless the circumstances are the same. Regardless, any such proposal would need to address and provide sufficient environmental planning grounds to grant a variation.

The 4.6 objection

46. The development standard for building height is not met with the upper section of all those units that are to contain mezzanine areas and a large proportion of the proposed new building exceeds the 11m development standard.

47. The applicant relies on a written request prepared by Ms Francis and contained in Exhibit F. For consent to be granted the Court must be satisfied that the request adequately demonstrates the matters in clause 4.6 have been satisfactorily addressed and the proposed development would be 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.

48. Clause 4.6 of the LEP is in the following terms:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be 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, and

(b) the concurrence of the Secretary has been obtained.

49. Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 states at [15]:

The first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicant’s written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters.

50. Further guidance on the proper application of cl4.6(3)(a) and (b) is provided at [25] where His Honour states:

The consent authority, or the Court on appeal, must form the positive opinion of satisfaction that the applicant’s written request has adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b). As I observed in Randwick City Council v Micaul Holdings Pty Ltd at [39], the consent authority, or the Court on appeal, does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b), but only indirectly form the opinion of satisfaction that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b). The applicant bears the onus to demonstrate that the matters in cl 4.6(3)(a) and (b) have been adequately addressed in the applicant’s written request in order to enable the consent authority, or the Court on appeal, to form the requisite opinion of satisfaction: see Wehbe v Pittwater Council at [38].

51. Ms Francis says the current consent provides for a building with a maximum height of 16.55m at RL41.2 noting that due to the topography of the site there is a building of the same RL that is compliant with the development standard. The proposed additional units have a maximum height at RL40.65 and building height of 16.65m with the maximum breach being at the lowest part of the site below following the former drainage line towards the northern portion of the site. The remainder of the building height breaches the standard from 1.35m in the south-east corner and 4.29m in the south-west corner.

52. In relation to the proposed mezzanines, the approved warehouse units 53-61 have a maximum building height at RL40.65 above the lowest point of the existing ground level below (i.e RL25.61). As a result, the proposed mezzanines present a maximum overall height of 15.04m and a variation of 4.04m over the 11m maximum building height development standard for the site.

53. Ms Francis relies on the first test in Wehbe v Pittwater Council (2007) 156 LGERA 446 in her written request which argues that compliance with the building height development standard is unreasonable or unnecessary in the circumstances of this case. That test relies on demonstrating the objectives of the standard are achieved notwithstanding non-compliance with the standard.

54. The written request deals with each objective and argues those relevant to the proposal are met. The following is a commentary from Ms Francis addressing each objective.

55. Objective (a) is to ensure that buildings are compatible with the height and scale of surrounding and nearby buildings.

56. Ms Francis says buildings in the surrounding area are predominantly characterised by industrial/commercial type uses that range in scale between one and two storeys in height. The upper ground floor level of the building approved under the existing consent is developed off the ground level of RL34.25, accessed off Villiers Place and this establishes the character of the immediately surrounding area. It is within this context, the five additional warehouse units and nine mezzanine levels are to be located. The additional five warehouse units are at the same or lower RL than the immediately adjacent approved units and the mezzanines, while extending the height of the approved units by 1.85m, are at a lower RL than the approved adjacent warehouses 50 and 51 fronting Villiers Place. Contextually, the proposal and this variation will be consistent with the approved height and scale of nearby development.

57. In the context of the application, Ms Francis says the surrounding development is primarily the development approved under the existing consent. However, other residential and industrial developments are nearby that have been considered. There is residential development immediately north and east of the site. These residences are located on the top of an escarpment and therefore sit above the proposed development. In this context, these residences are not impacted by the proposed height and scale of the proposed development and its variation in height. Rather, they would be seen in the compatible context of the existing approved warehouse units.

58. Industrial development to the south, east and west of the site generally comprises two/three storey developments. However, the controls allow development that is 11m in height. The proposed development is compatible with the existing and desired future heights of these developments to the south, east and west of the site.

59. The maximum breach of the standard is directly related to the sloping topography of the site, and breaching the standard allows for a consistent built form on the site.

60. Objective (b) of the building height development standard is to minimise visual impact, disruption of views, loss of privacy and loss of solar access.

61. Ms Francis’ written objection deals with each impact separately. In terms of visual impact she says the proposed variation will be visible from the residential dwelling to the northern and eastern sides of the site however, due to their rear building setbacks, which vary from 16 to 26m, and the significant vegetation located at their rear boundaries, views are limited to the roofs of the additional mezzanines and the proposed additional units. The side of proposed warehouse 2 would also be visible from those properties. Where the new units are proposed these views were of the previously approved tarmac for car park purposes. The proposed variation is also partially visible from the bottom of the rear gardens of the residential properties at 90, 92, 100 and 102 Parkes Road, Collaroy Plateau. The extent of visibility of the proposed variation varies from property to property. She says the visual impact of the proposed variation, when viewed from the rear gardens of the residential properties to the north and east is minimised, as it sits within the context of the approved development as shown in photographs included in the written objection, Exhibit F.

62. The proposed additional warehouse units occupy an area currently approved as car parking and therefore the visual impact changes from tarmac, cars and lighting to the walls and roof of the proposed warehouse units. The “view” is different but not detrimental.

63. Ms Francis concludes the breach of the standard will minimise the visual impacts from surrounding residential properties and discusses the impact of the development when viewed from the public domain later when discussing objective (d).

64. Photomontages were prepared that indicate the location of the proposed development and detail that portion of the buildings that exceed the building height development standard. Those plans are included in Exhibit C and replicated in the written objection. Ms Francis says the views of the site from the public domain are not adversely impacted by the proposal, particularly when comparing it to the built form approved under the current consent. She says the views that are affected are views of the sky and some minor loss of visible tree canopies from the public stairs. Views are in fact improved looking west along Villiers Place as a result of the proposed reduced signage which, she says, reduces the bulk at the street frontage and increases views of vegetation behind and between the approved units.

65. Ms Francis says the view of the additional warehouse units and the proposed variation to the height development standard when viewed from the residential properties on Parkes Road represent a more ‘passive’ activity than that offered by the car park currently approved in this location. In her opinion, to obtain the views shown by the montages, residents would need to stand at the very end of their properties and look downwards with no loss of district views. Similarly, the additional height involved in construction of the mezzanines does not affect district views.

66. In relation to the residential properties in Villiers Place, particularly No. 11, district views currently obtained over and through the site will be generally maintained by the development and proposed variation. However, should the two industrial sites located between the site and 11 be developed to their anticipated height of 11m, no distant views would be available at all.

67. In regard to privacy, Ms Francis says the proposed development is situated below any residential properties and is appropriately setback from adjoining industrial development to the south and east. Therefore, the proposed variation to the height will not result in a loss of privacy to surrounding residential and industrial/commercial properties.

68. The proposed development does not cast any shadows onto any residential properties with the majority of shadows cast falling on the site itself, with minimal shadows cast onto the roof of 20 Inman Road and 2 Villiers Place. Ms Francis says shadows cast onto those developments are reasonable given the nature of those developments and their minimal setbacks.

69. Objective (c) is to minimise any adverse impact of development on the scenic quality of Warringah’s coastal and bush environments. Ms Francis notes the site is in the Cromer industrial area, approximately 2.6k from the nearest beach at Collaroy and is not located near any of Warringah’s bush environments. Accordingly, she concluded the proposed variation to the maximum building height standard will have no impact on the scenic quality of these environments because of this distance.

70. Objective (d) is to manage the visual impact of development when viewed from public places such as parks and reserves, roads and community facilities. Ms Francis says the proposed works would have minimal to no visibility when viewed from Inman and Middleton Roads when compared to that already approved. Only the mezzanines of warehouses 57-59 are visible from Middleton Road and only a minor portion of the top of the proposed new units is visible form Inman Road.

71. Ms Francis says the proposed mezzanines have been designed to minimise visibility from Villiers Place, with all of the work being setback from the street frontage boundary by a minimum of 8.5m.

72. In assessing the visual impact from the public footpath that adjoins the site, Ms Francis says the additional five units would only visible from the top of that stairway because the view is blocked by the units approved under the current consent. When at the top of the stairs, only warehouse 66 and part of 65 would be visible, some 19m from that boundary which, in her opinion is not unacceptable. The approved landscaping on the upper ground level adjacent to the stairway and the new proposed landscaping minimise the visual impact of the proposed variation. She concludes the proposed development will have no unacceptable impacts in terms of visual impact from the public domain.

73. The second matter that must be addressed in the written request is that there are sufficient environmental planning grounds to justify contravening the development standard.

74. Ms Francis relies on the Statement of Environmental Effects lodged with the development application (Exhibit A) saying it provides a holistic environmental planning assessment of the proposed development and concludes that, subject to adopting a range of reasonable mitigation measures, there are sufficient environmental planning grounds to support the development.

75. Rather than reiterate those sections, the written request lists specific grounds that Ms Francis says justify breach of the development standards. They are at page 21 of the request and are detailed as follows:

• The varying topography of the site, including a steep slope from the northern and eastern boundaries to the southern and south-western boundaries, ranging between RLs 22.34 up to 43.16 (20.82m), results in a breach of the height as it relates to the site. That topography is related to both natural processes as well as an altered ground level due to development of the land over time and is significantly lower than Villiers Place and the public stairs that traverse upwards along the western boundary. The maximum breach is in the centre of the site where the topography follows an existing drainage line.

• The site is subject to a building that has been approved with a maximum RL41.2, noting that this part of the building is at the Villiers Place frontage and visible from adjoining properties and the public domain. The proposed works have a maximum RL40.65 and are setback from the edges of the street frontages by between 8m and 19m to minimise visibility and are viewed contextually from the Villiers Place level of RL34.25. The proposed variation therefore sits within buildings of the same “height” built from the same floor “level” and of the same character, form and function.

• The variation to the standard will provide additional ongoing employment opportunities on the site and contribute to the Cromer Industrial Area, which directly satisfies the objectives of the zone. Further, the variation allows for the additional employment/industrial floorspace to be included on a site that has been considered suitable for this particular use and is compatible with the zone and surrounding properties.

• The proposed variations occur at locations either recessed from the street and/or screened by existing buildings and approved and proposed landscaping. The proposed variation will not give rise to any adverse visual impact, overshadowing, sunlight access or loss of privacy to any residential properties to the north.

• Specifically, the increase in height of the approved warehouses by 1.5m, as a result of the provisions of the proposed mezzanine levels, is required to allow for commercial vehicles up to and including small and medium rigid trucks to access the loading bays within each of the approved warehouses. As approved, only small vehicles may access the units and this has proven contrary to market demand.

76. Ms Francis also suggests that through its approval of the current consent, the council has varied the development standard on the site for a development of which the application is an integrated part and whilst it is not suggested the council has abandoned application of the standard, it is suggested that compliance with the standard would be unnecessary and unreasonable.

Conclusion and findings

77. The council did not support grant of the consent and submits the written request is flawed as it does not satisfy the provisions of clause 4.6(3). For consent to be granted I must be satisfied that the request justifies contravention of the standards and that there are sufficient environmental planning grounds to justify contravention of the building height development standard.

78. Having regard to the written request and the evidence before me, I am not so satisfied. That is because I am not satisfied that the request has provided sufficient environmental planning grounds to justify contravention of the standard.

77. That is because the application must be assessed against the development as it is approved under the current consent. It is that consent against which the council had originally determined that it would be appropriate to vary the building height development standard and the Court notes the extent of variations to that standard were restricted to only small parts of the building and did reflect the topography of the site. There is no topographical reason that can justify the variation to the building height control based on the application now before the Court. The building footprint and “ground floor” has been established under the current consent. That level is the level upon which it is proposed to construct the additional units. Almost all of those units will breach the height control.

78. As stated by Mr Milliken, the original design of the proposal paid heed to the topography and did not propose buildings in the area now the subject of the application. The fact that other buildings have been approved at a similar height to that now proposed is not, in my opinion, sufficient environmental planning grounds to allow the variation to the development standard.

79. Similarly, the claim that the additional development will generate employment opportunities is not particular to the circumstances of the proposed development on the site. The current consent provides employment opportunities as would any other industrial development built within the Cromer industrial estate. To accept a departure from the development standard in that context would not promote the proper and orderly development of land as contemplated by the council’s planning controls. The council, through its planning controls has identified the area as suitable for industrial use and the ongoing employment opportunities generated by that use however, there is nothing unique about the circumstances of this case that can demonstrate why it would be appropriate to vary those controls.

80. Whilst I accept that the proposed variations occur at locations either recessed from the street and/or screened by existing buildings and approved and proposed landscaping, these are design elements and not environmental planning grounds. Similarly, I accept that the works the subject of the proposed variation will not give rise to any adverse visual impact, overshadowing, sunlight access or loss of privacy to any residential properties to the north however, I do consider that there will be adverse view impact to residents of Villiers Place. This is also not sufficient environmental planning grounds on which to allow variation to the development standard.

81. Finally, the failure of the current consent to accommodate larger vehicles in the design of the development is not sufficient environmental planning grounds on which to allow variation to the development standard. It is apparent from the evidence before the Court that the proposed mezzanines are outside the area required for loading within each unit and therefore, this ground is not supported.

82. For these reasons, I am not satisfied that it is appropriate to vary the development standard for building height and the application must fail.

83. It is therefore not necessary to determine the merits of the application.

84. The Orders of the Court are:

1. The appeal is dismissed.

2. Development application No DA2019/0135 for the construction of an additional five units and nine mezzanine areas within approved units is refused consent.

3. The exhibits, other than exhibits A and C, are returned.

Sue Morris

Acting Commissioner of the Court

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Decision last updated: 12 December 2019