Vatera Pty Ltd v Lane Cove Council

[2021] NSWLEC 1130

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vatera Pty Ltd v Lane Cove Council [2021] NSWLEC 1130

Hearing dates:

10, 11 December 2020 and 25 January 2021

Date of orders:

15 March 2021

Decision date:

15 March 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The orders of the Court are:

(1) The written request seeking to justify contravention of the applicable height of building standard is not upheld.

(2) The appeal is dismissed.

(3) DA14/2018 for construction of a five storey mixed-use development and associated works at 38-42 Burns Bay Road Lane Cove is refused.

(4) The exhibits are returned with the exception of exhibits A-F, L-P and 1.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – contravention of height of building standard – whether compliance is unreasonable or unnecessary in the circumstances of the case – whether proposed development in the public interest because it is consistent with the objectives of the particular standard

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Lane Cove Local Environmental Plan 2009

Cases Cited:

Antoniou v Bayside Council [2018] NSWLEC 1584

Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61

Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Woodford Australia Pty Ltd v Lane Cove Council [2013] NSWLEC 1193

Texts Cited:

Land and Environment Court, COVID-19 Pandemic Arrangements Policy (July 2020)

Lane Cove Development Control Plan 2010

Category:

Principal judgment

Parties:

Vatera Pty Ltd (Applicant)
Lane Cove Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Messenger & Messenger Solicitors (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/235393

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Lane Cove Council’s refusal of Development Application No. DA14/2018 (DA). The DA seeks consent for the construction of a mixed-use development at 38-42 Burns Bay Road Lane Cove, legally described as Lots 19 and 21 in DP 530200 and Lot 1 in DP 550930 (Site).

Proposed development

2. I rely, in part, on Council’s Further Amended Statement of Facts and Contentions filed 5 November 2020 (Ex 1) for much of the descriptive particulars in this and the following two sections.

3. The DA seeks consent for the demolition of existing structures, tree removal, and the construction of a five-storey mixed-use development containing retail premises, commercial premises, serviced apartments, residential apartments and a roof terrace, with ground floor and basement parking. Associated strata subdivision is also proposed.

Site and context

4. The Site is located within Lane Cove Town Centre on the southern side of Burns Bay Road, between Longueville Road to the east and Tambourine Bay Road to the west.

5. The Site has a total area of 778.6m² with a frontage to Burns Bay Road of 15.47m, a frontage of 15.235m to Sera Street at the rear and an average depth of 51.1m.

6. There are three existing commercial buildings located on the Site as follows:

• 38 Burns Bay Road contains a part 1/part 2 storey building currently occupied by a Dymocks book shop on the ground floor.

• 40 Burns Bay Road contains a part 2/part 3 storey building that was vacant at the time of preparation of Ex 1.

• 42 Burns Bay Road contains a part 1/part 2 storey building, which was also vacant, and an associated unpaved car parking area in the rear yard.

7. Vehicular access to the Site is from Sera Street to the rear.

8. The Site slopes considerably from its Burns Bay Road frontage to its Sera Street frontage, representing a grade of 1 in 6.2 or 16% (8.2m from front to rear), according to Ex 1.

9. Surrounding development, to the north, east and west, comprises predominantly retail and commercial development within the Lane Cove Town Centre. There is residential development to the south and west of the Site beyond Sera Street. Sera Street provides vehicular access to the car park associated with Lane Cove Market Square, other retail/commercial premises on the southern side of Burns Bay Road and parking areas. It has also provided access to the parking for the former Coles supermarket to the west of the Site at 56-60 Burns Bay Road, however Coles have now relocated. The former Coles Site is subject to a development consent which arises is evidence.

Statutory setting

10. Below I outline the noteworthy planning controls. The Site, as well as the nearby commercial and retail development within the Lane Cove centre, falls within Zone B2 Local Centre pursuant to the provisions of Lane Cove Local Environmental Plan 2009 (LCLEP). The zone objectives are:

•  To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

•  To encourage employment opportunities in accessible locations.

•  To maximise public transport patronage and encourage walking and cycling.

•  To ensure that this centre functions as a Town Centre in the hierarchy of Inner North Sub-region retailing.

•  To permit development for the purposes of offices, community and other facilities.

•  To encourage urban design maximising attractive public domain and adequate circulation space throughout the Lane Cove town centre for current and future users.

•  To ensure that landscaping is a significant element in public and private development viewed from the public domain.

11. The development is characterised as for the purposes of “shop top housing”, “tourist and visitor accommodation” and “commercial premises”. Each of these uses are permissible with consent in Zone B2 Local Centre.

12. The residential area to the south of the Site, beyond Sera Street, is situated within Zone R3 Medium Density Residential under LCLEP.

13. LCLEP’s Height of Buildings Map, referred to in clause 4.3(2), provides for a maximum height of buildings of 9.5m on the Site.

14. LCLEP’s Floor Space Ratio (FSR) Map, referred to in clause 4.4(2), with bonus provisions would allow for a maximum FSR of 2.5:1 for the Site.

15. Lane Cove Development Control Plan 2010 (LCDCP) also applies and was considered in evidence.

Hearing proceedings

16. Proceedings were conducted under the guidance of the Court’s COVID-19 Pandemic Arrangements Policy, issued 1 July 2020. More particularly, the hearing was conducted as a virtual court room using the Microsoft Teams platform. As a consequence of the Site context and issues raised, in this instance I decided it would be appropriate to conduct a restricted inspection of the Site and context accompanied by the parties, and planning and design experts.

17. The experts giving evidence in the proceedings are listed below:

Name	Expertise	For
Mr A Ludvik	Planning	Applicant
Mr G Apps	Planning	Council
Mr A Cadogan	Urban design	Applicant
Mr R Dickson	Urban design	Council
Mr C McClaren	Parking	Applicant
Mr P Corbett	Parking	Council

Issues

18. While there was a longer listing of contentions in Ex 1, the real issues in dispute in these proceedings can be refined down to two:

1. Implications of proposed building height and form. Of most note is the proposed building’s contravention of the maximum height of buildings control applying to the Site under LCLEP.

2. Parking.

19. As the contravention of the building height standard presents a jurisdictional gateway, I deal with this immediately below, after first introducing some matters of background that arose in evidence.

Background

20. The Applicant drew attention to a previous approval over the Site for development of some considerable similar form. According to material included within the Applicant’s Bundle of Documents (Ex H, Tab 2) DA 54/14 for a mixed-use development (with not dissimilar height contraventions) was approved at Lane Cove Council’s Independent Hearing and Assessment Panel Meeting of 4 November 2014. Without physical commencement this consent would have lapsed in November 2019. A letter of advice on behalf of the Applicant. including legal and technical material (Ex K), seeks to demonstrate that physical commencement has occurred. Council does not concede that this is the case.

21. The Applicant indicates that DA 54/14 has a greater gross floor area than that which is currently proposed, and that the current proposal is “an improvement on the previous development” (Tcpt, 25 January 2021, p 144 (15-20)).

22. Each of the parties drew attention to my own findings in Antoniou v Bayside Council [2018] NSWLEC 1584 (Antoniou) at [24]-[26], where I respectfully referenced findings of Preston CJ in Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 (Tuite), in regard to the question of what regard should be had to previous consents. It is clearly helpful to understand this background, and the fact of the previous consent, but the essential point for me under Tuite is that while regard may be had to previous consents, the central obligation is to assess and determine the particular development proposal, considering the impacts on the environment as existing now, rather than consider and compare likely impacts of a previously approved development (Antoniou [27]).

23. I also mention that in this case there is a reference to this previous consent (DA 54/14) as evidence to support an argument of Council’s virtual abandonment of LCLEP’s building height standard. There is an obvious legitimacy to the examination of DA 54/14 in regard to this question.

24. The Council drew attention to a mixed-use development application for the Site prior to this date (DA 30/2013) which had somewhat similar height contraventions to the subject proposal and was refused by Council and appealed to the Court. Mr Ludvik also drew attention to this matter in his evidence (see [51]). The Court determined on 15 October 2013 to dismiss the appeal (Woodford Australia Pty Ltd v Lane Cove Council [2013] NSWLEC 1193 (Woodford)). Both Council and Mr Ludvik saw certain findings of Commissioner Brown in Woodford as of pertinence here. I again note this as helpful information, but emphasise that my obligation here, as the Court’s delegate, is to make my own adjudication on things as they exist now.

Contravention of development standard relating to building height

25. The Applicant is seeking an exception for the contravention of the maximum building height development standard under cl 4.6(2) of LCLEP. The permissive power in cl 4.6(2) is subject to the restrictions in subcll 4.6(3)-(5):

(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 Planning Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Planning Secretary must consider—

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.

26. Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent in instances of a development standard contravention.

27. The first opinion is in regard to a written request from the Applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.

28. The written request, prepared on behalf of the Applicant, seeking to justify the contravention was prepared by Ludvik and Associates. There are three parts to it: (1) the Request for Variation of Building Height Standard, dated 10 July 2020 (WR), (2) the first addendum, dated 10 December 2020 (WRA1) which addressed provisions in an amended landscape plan relating to rooftop pergolas, and (3) the second addendum dated 27January 2021 (WRA2) concerned with some matters I raised during the hearing.

29. I noted previously that the maximum height of buildings standard applying to the Site is 9.5m. As explained in WR (and not in dispute among the parties), the rooftop parts of the building would have building heights ranging from:

• 19.3m to 19.7m at the lift overrun;

• 17.5m to 18m at the stairway;

• 13.3m to 18m at the glazed balustrade; and

• 13.4m to 14.9m at the plant enclosure.

30. It is agreed that with respect to the proposed building’s Sera Street frontage, albeit acknowledging certain building setbacks from the road boundary itself (WR, p 2), the contravention is in the order of 7.4m. The maximum contravention is in the smaller area of the lift overrun on the rooftop (9m²), more central to the building, where the contravention is around 10m. There is a much smaller contravention near to the Burns Bay Road frontage to the building, with which the Council does not object to on merits.

Whether compliance with the development standard is unreasonable and unnecessary

31. Mindful of cl 4.6(3)(a) of LCLEP, the written request initially seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ’s finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request finds that (WR, p 4):

“…compliance with the building height standard is unreasonable and unnecessary as:

• the standard has been virtually abandoned or destroyed by Council's own actions in granting consents departing from the standard; and

• the proposal achieves the objectives of the standard despite varying from its numerical value.”

32. These points of justification align with the first and fourth “Wehbe ways” (Wehbe [42] and [47]). As such, to successfully demonstrate either to be the case, the written request would succeed in establishing that compliance with the development standard is unreasonable and unnecessary in the circumstances.

Whether the standard has been virtually abandoned

33. The written request’s grounds for demonstrating that there has been a virtual abandonment of the standards can be seen as having two elements: (1) evidence of approved contravening development (as physically observed during the Site inspection and through provision of documentary evidence), and (2) evidence of commentary from a former Council strategic planning manager seen as of support.

34. The written request states (WR, p 4):

“Since the 9.5m building height standard came into force on 19 February 2010, Council has granted the following consents for the only significant redevelopments in the B2 Local Centre zone in the Town Centre which are subject to the same 9.5m building height standard:

Consent No.	Consent Date	Address	Maximum Height
DA207/2010	20 June 2011	152-154 Longueville Road	19.1m
DA34/2014	15 May 2014	12-16 Lane Cove Plaza	15.3m
DA54/2014	12 November 2014	38-42 Burns Bay Road	16.5m

In supporting the approval of the development on 152-154 Longueville Road, Council's Strategic Planning Manager indicated that:

• in view of the importance placed by the community on retaining the ‘village’ scale fronting the Plaza, Longueville Road and Burns Bay Road, Council decided to be conservative, limiting height to 9.5m, with a view to allowing flexibility through Clause 4.6 permitting variations to the standard and to avoid Court challenges from development applications proposing several storeys along those streets if permitted in the LEP; and

• the proposal was consistent with long-standing Council policy and planning controls and a significant variation to the development standard was supported.”

35. First, I would note that in the table included in the above quote there is reference to “DA54/2014”. I take this to be an alternative way of referring to the consent referenced as DA 54/14 in Ex H (Tab 2).

36. In considering whether the written request has successfully demonstrated that the development standard has been virtually abandoned it is reasonable for me to give attention to the contrary submissions of Council and its experts.

37. I see the first point of Council here as a conceptual one. This was that Council acknowledged the need for flexibility in the application of the control and this could be reasonably read into the objective of the control. It will be seen below that this is concerned with Objective (d) of LCLEP’s height of buildings clause which provides the objective of the height control is “to relate development to topography”. The phrasing “relate to” is seen to provide some lesser fixity than say the phrasing “accord with” topography. It was suggested this recognition of the need for flexibility was evidenced by Council’s acceptance of the merits of the contraventions at Burns Bay Road, and other suggestions of the experts on how a lesser building height at the rear might be capable of approval (ie have an acceptable impact to the south in particular) despite some height contraventions.

38. Secondly, Council drew attention to what it saw as significant differing circumstances applying in regard to 152-154 Longueville Road and 12-16 Lane Cove Plaza. The central point in regard to 152-154 Longueville Road was that the neighbouring development to the east (of Pottery Lane road reservation) was zoned R4 High Density Residential with a building height control of 12m. That is, higher than the 9.5m control applying in the B2 zone. So the implications of the height contravention were different to a setting like the subject Site where the land south of Sera Street is zoned R3 and has the same height control as the Site (9.5m). For this approval, there was also reference to a suggestion in the Council assessment report that building presentation to Pottery Lane in this vicinity was already of 4 to 5 storey appearance.

39. In regard to 12-16 Lane Cove Plaza, Council drew attention to the different scale of contravention and its different setting, more internalised within the town centre.

40. Council indicated both as examples of the flexible application of policy.

41. This would leave the Council approval of DA 54/14. Council’s position seemed to me to be that it now saw this previous determination as an inappropriate one, preferring the decision of the Court in regard to Woodford in relation to the earlier development application for the Site.

Consideration

42. I am not convinced that the written request has demonstrated that there has been virtual abandonment of the standard. I agree with Council that two of the cases cited in the written requests (152-154 Longueville Road and 12-16 Lane Cove Plaza) demonstrate significantly different contexts to the Site setting. 152-154 Longueville Road orients towards taller built forms and 12-16 Lane Cove Plaza comprises a lesser scale of departure and is more enclosed by an established urbanised setting, rather than at the zone edge. Each can be considered as examples of flexible application of policy. The consent to DA 54/14 is an example of low weight to the building height control but this one example is insufficient of itself to convince of abandonment.

42. While I note the commentary in regard to the consent for 152-154 Longueville Road from Council strategic planning manager, I cannot give it sufficient weight to bring about a finding of abandonment. There has not been an ability to more fully examine these opinions of this individual to glean a satisfactorily complete understanding of the context of his or her commentary. It seems to me that at least equally noteworthy is the evidence concerning the recent approval for redevelopment of the former Coles site (56-60 Burns Bay Road) where the approved development could be more reasonably seen as relating to topography and is suggested by Mr Apps to provide for a “reasonable level of variation to the height control” (Ex 5, par 157-158 and Fig 26).

Whether the objectives of the height of buildings standard are achieved

44. I reproduce the list of objectives of cl 4.3 below:

(a) to ensure development allows for reasonable solar access to existing buildings and public areas,

(b) to ensure that privacy and visual impacts of development on neighbouring properties, particularly where zones meet, are reasonable,

(c) to seek alternative design solutions in order to maximise the potential sunlight for the public domain,

(d) to relate development to topography.

45. In regard to objective (a), the written request adequately demonstrates that the development allows for reasonable solar access to existing buildings and public areas. WR (p 8) refers to the adjacent retail and commercial buildings and the residential buildings fronting Austin Street (ie to the south of Sera Street),demonstrating that there is no unreasonable impact on existing solar access to these buildings. WRA2 attaches particulars of shadowing. I accept the written requests advice that “Sera Street is a service road, with public areas limited to a narrow footpath on its north side…The proposal will not have any significant effect on public areas in Sera Street in terms of overshadowing” (WR, p 8).

46. Objective (c), it seems to me, is the kind of development standard objective considered in Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 (Baron) to be “explanatory of the purpose of the … development standard” (Baron at [49]). Objective (c) is already achieved, with the applicable height of building controls “seeking” development application to embody certain “design solutions” of themselves. I am satisfied that the written request does not need to demonstrate anything further in regard to objective (c).

47. In regard to objective (b), the written request argues that privacy and visual impacts on neighbouring properties, including to the residential areas to the south, are reasonable. The points argued to justify this argument include (WR, p 8):

“The site is separated from the nearest residential zone in Austin Street by Sera Street and significant vegetation in the rear yards of the residential properties.

When the application was advertised, no objections were raised to the proposal from residents of these properties.

The proposed building will not have any adverse privacy or visual impacts on:

• any residential properties due to its separation from them and intervening natural features; or

• other adjacent properties in the Town Centre.

The privacy and visual impacts of the proposal will be little different to the building that could be constructed in accordance with Development Consent No. 54/2014.”

48. It is further argued that rooftop elements such as lift overrun and stairways (which embody the greatest height contraventions) are centrally located on the roof and would “not be readily discernible” (WR, p 2). The stepping of the Sera Street frontage is also emphasised, including that (ibid):

“The southernmost rear section of the building, where its main wall steps in from 3m to 6m from the Sera Street boundary, is to have a maximum height of 8.6m, which … is 3.3m lower than the existing building on 40 Burns Bay Road …”

49. WRA1 picks up the changes at the roof level, relevantly in regard to proposed pergolas, and argues that the conclusions above remain valid.

50. It is argued that “(the) proposed building will be consistent with the prevailing height of buildings in this locality" (ibid). A number of buildings are referenced but of particular note is the large structure of Lane Cove Market Square (Market Square) which is indicated as 19.7m in height and is located relatively immediately to the Site’s east and south-east.

51. In regard to objective (d), the written request’s arguments are generally as follows (WR, p 9):

“This objective was considered by the Land and Environment Court in determining an appeal for the redevelopment of this land in Development Application No. 30/2013 (Woodford is referenced).

The Court on 15 October 2013 held that relating to topography did "not mean that the height of the building must have a direct relationship with the topography or that there must be multiple steps in the floor level to maintain the same height with the steep topography to satisfy" this objective.

Council subsequently issued Development Consent No.54/2014 on 12 November 2014 for a redevelopment of the land.

The building's height in relation to the site's topography will not be dissimilar to other contemporary buildings in the Town Centre with similar topographical characteristics, such as, Market Square on 24-28 Lane Cove Plaza and the buildings on 102-104 and 152-154 Longueville Road.

The building's modulated elevation reflects the site's topography.

The proposed building is:

• consistent with how it and existing surrounding buildings relate to the topography of this area; and

• largely contained within the building envelope approved by Development Consent No. 54/2014”

Consideration

52. Given my comments above, for particular attention here are the written requests work in regard to objectives (b) and (d) of the height of buildings standard at cl 4.3 of LCLEP.

Interpretation

53. Objective (b) to cl 4.3 can be clearly understood. It is concerned with the reasonableness of impacts on neighbouring properties, specifically privacy and visual impacts. A point of differentiation from objective (a) is its reference to neighbouring “properties”. In contrast, objective (a) is concerned with (solar access) to “existing buildings”.

54. Objective (d) is different in that it does not go so far as to specify an impact that it seeks to prevent. It does not say the building height standard seeks to relate development to topography so that a certain thing could be achieved. It seems to me that the objective might be read in two ways. First as a kind of catchall, to establish that the height of building control in LCLEP is concerned with relating development to topography as an end in itself. This interpretation might be understood as opening the clause intentions up beyond the other listed clause objectives, such as to include other generally understood benefits of relating development to topography. Pertinent here, this interpretation might open up to the consideration of solar access impacts of contravening development to “properties” rather than just “buildings”.

55. The second interpretation is that objective (d) is simply explaining what the clause is, by definition, seeking to do. The building height map, behind cl 4.3 in LCLEP, does already require building height to relate to existing ground level (ie topography), mindful of the “building height” definition in LCLEP’s Dictionary.

56. It seems to me that this second interpretation is preferred. I do not think it reasonable to see objective (d) as adding further to specific outcomes sought from the height of building control, otherwise nominated in the clause objectives. It would be reasonable to expect further specificity if that were the case.

57. In turn, I do not see that there is particular work for the written request to do in regard to demonstrating that objective (d) is achieved. I certainly agree with the written request, including in respect to its reference to Woodward reproduced at [51], and really all parties, that objective (d) does not restrict the flexible application of the height of building control at cl 4.3. I also note the written request’s commentary in regard to objective (d) insofar as it might support achievement of objective (b).

Privacy impacts on neighbouring properties

58. I am satisfied in regard to the written request’s arguments in regard to reasonableness of privacy impacts on neighbouring properties (part of objective (b)). Of most relevance is the building separation aspects to the south, given the proposed building setbacks to Sera Street and in particular the Sera Street road reservation. I am satisfied that the side boundary considerations are able to be managed.

Visual impacts on neighbouring properties

59. There was considerable direct evidence in regard to the reasonableness of visual impact which is useful for me in evaluating the written request.

60. Having considered this evidence, I am not satisfied that the written request has demonstrated that its visual impacts on neighbouring properties to the south would be reasonable.

61. To set the scene, it is helpful for me to reference an opinion of Mr Apps (Ex 5, par 154):

“…(the development) would have a visual impact on neighbouring properties in the R3 Medium Density Residential zone by way of the 5 storey street wall to Sera Street which will be an imposing structure and exacerbate the sense of enclosure already resulting from the Woolworths building (aka Market Square).”

62. It seems to me there are three areas to consider here in regard to the written request, essentially along the themes of the particulars of the visual impact and its reasonableness. The first is the extent to which the building should be considered as comprising a “five storey street wall”, or something of like massing. The written request points to the moderation in building presentation to Sera Street. While I acknowledge the compliance with the 3m setback requirement to Sera Street, the key point for me in this question of street wall presentation perception is the fact of the increased 3m setback for the upper levels. While at certain angles it would seem somewhat articulated, I am not satisfied that these setbacks would have a material impact on the perception that the development presents, essentially, a five storey elevation to the street.

63. The second is in regard to the fact that the most impacted upon areas are currently backyards and that, as well, there are “intervening natural features” suggested by the Applicant to mitigate visual impact. The concern here is impact on neighbouring properties and it seems to me there is a reasonable baseline assumption that there will be residential redevelopment in these lands given their development potential under the B2 zone. In turn I am not convinced that the fact of these particular intervening natural features referenced in the written request (such as vegetation) and the fact of the existing backyard should be given considerable weight.

64. The third can be considered under the heading of reasonableness but has a number of factors to. The written request’s reasons include: (1) that there were no objections to the development from these properties and (2) impacts would be little different from DA 54/14. While notable, I do not find these points particularly convincing to me in my considerations. More pertinent are the written requests drawing out of the proposal’s similarities to the Market Square development and development generally in Lane Cove Town Centre, including its arguments that (WR, p 9):

“The proposed building is:

• consistent with how it and existing surrounding buildings relate to the topography of this area”

65. I have already referred to the written request’s reference to the other existing or approved development with building bulk to the rear. It seems to me the written request can be seen to be arguing that there is a reasonableness to having building bulk to the rear in the B2 zone, as a matter of principle, such as to encourage development in the Lane Cove Town Centre; and that in planning terms, this should be a counterpoint when balancing the question of reasonableness of visual impacts of the building. In submissions, the Applicant drew this out more explicitly referring to the FSR bonus provisions relating to shop top housing development (cl 4.4(2A) of LCLEP allows an FSR of 2.5:1 for a building containing shop top housing, on certain lands including the Site, where otherwise a 2:1 FSR would apply). Also related here is the practical design feature, recognising the north-south site orientation, accommodating two “pavilions”, separated by some distance at the upper levels (ie an internal area without building bulk), which would enable solar access to the southern pavilion.

66. It seems to me the question that comes down to me is whether, in a sense on balance, the written request had demonstrated that visual impact to properties to the south are reasonable given the fact of distance attenuation and existing trees, uncertainties of future development prospects on neighbouring land anyway, the existing built form setting and the overall intentions for Lane Cove Town Centre. I am not convinced that the written request has achieved this.

67. I give considerable weight to the fact of the 9.5m height control applying to both sides of the zone transition near the Site (B2 Local Centre – R3 Medium Density Residential), and the height of building control’s interest in such areas of zone transition. The written request has not convinced me that it is reasonable to provide for such a visually imposing structure near the adjacent R3 zone properties when the objective of the control seems to have a direct interest in visual impact of this kind.

68. I note the suggestion that the proposal would fit in with the context, but note there is agreement on the fact that the Market Square development involved a different set of planning controls. I am not convinced that the immediate setting in Sera Street, otherwise, is contextually supportive of a five storey development at the Site. I am more in agreement with Mr Apps that the proposal would exacerbate the sense of enclosure already resulting from Market Square (Ex 5, par 154).

69. While noting the fact of the bonus FSR provisions at cl 4.4, such controls are appropriately seen as maxima rather than as of right. I am not convinced that this should take a particular priority over the provisions at cl 4.3 of the LCLEP with respect to development within Lane Cove Town Centre.

Whether the proposed development will be in the public interest because it is consistent with the objectives of the particular standard

70. I now turn to the test at cl 4.6(4)(a)(ii) of LCLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the height of buildings standard and the objectives for development within the B2 zone. To pass the jurisdictional test I would need to be satisfied in regard to both grounds.

71. In considering the written request, I have been mindful of other central submissions or points of evidence that might convince (ie other than the written request), in particular the point of balancing out LCLEP’s overall intentions when evaluating the question of reasonableness at objective (2) to cl 4.3. For the reasons cited above at [62]-[69], I am not satisfied that the proposed development is consistent with objective (2) of the height of buildings standard at cl 4.3 of LCLEP. Conclusions

72. In accordance with the above findings: (1) the applicant’s written request has not adequately demonstrated that compliance with the height of building development standard at cl 4.3 of LCLEP is unreasonable or unnecessary in the circumstances of the case, and (2) I am not satisfied that the proposed development will be in the public interest due to consistency with the objectives of this standard.

73. With these findings, the facultative provisions at cl 4.6(2) of LCLEP are not able to be engaged and development consent must not be granted. In the circumstances there is no need to consider the issues in contention further.

Orders

74. The orders of the Court are:

1. The written request seeking to justify contravention of the applicable height of building standard is not upheld.

2. The appeal is dismissed.

3. DA14/2018 for construction of a five storey mixed-use development and associated works at 38-42 Burns Bay Road Lane Cove is refused.

4. The exhibits are returned with the exception of exhibits A-F, L-P and 1.

.…………………………

P Walsh

Commissioner of the Court

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Decision last updated: 15 March 2021