Vortex Construction Pty Ltd v Georges River Council

Case •

[2024] NSWLEC 1169

•

11 April 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Vortex Construction Pty Ltd v Georges River Council [2024] NSWLEC 1169
Hearing dates: 12-13 February 2024; written submissions on 14 February 2024 and final written submissions on 15 February 2024.
Date of orders: 11 April 2024
Decision date: 11 April 2024
Jurisdiction:Class 1
Before: Horton C
Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA2022/0431 for the demolition of all existing structures on the site, and the construction of shop top housing development comprising 34 residential units, 6 commercial units and 3 levels of basement parking at 348-352 Railway Parade, and 2-2A Garfield Street, Carlton, is determined by the grant of development consent, subject to conditions of consent at An­nexure A.

(3) All exhibits are returned except for Exhibits A, C and 8.

Catchwords:

DEVELOPMENT APPLICATION: shop top housing development in E1 Local Centre zone – whether development isolates adjoining site – whether exhibits design excellence

Legislation Cited:

Architects Act 2003

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979, ss 4.15, 4.53, 8.7

Land and Environment Court Act 1979, s 39

Biodiversity Regulation 2017

Environmental Planning and Assessment Regulation 2021, s 38

Georges River Local Environmental Plan 2021, cll 2.3, 6.1, 6.2, 6.3, 6.6, 6.7, 6.10, 6.11, 6.12, 6.13

State Environmental Planning Policy Amendment (Housing) 2023,

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, Pt 2.2

State Environmental Planning Policy (Housing) 2021, Ch 4, s 147, Sch 7A, Sch 9

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 28, 30, Sch 1

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) s 2s 2.100, 2.118

Cases Cited:

Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117

Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308

Texts Cited:

Apartment Design Guide

Georges River Development Control Plan 2021, Pts 5.14, 7.1

Georges River Tree Management Policy

Category:Principal judgment
Parties: Vortex Construction Pty Ltd (Applicant)
Georges River Council (Respondent)
Representation:

Counsel:
L Nurpuri (Applicant)
N Hammond (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)
File Number(s): 2022/383670
Publication restriction: Nil

Judgment

  1. COMMISSIONER: Development is proposed on four lots of land located to the south of the Illawarra railway line, in close proximity to the Carlton Railway Station in the south of Sydney.

  2. The four lots comprise a site that is essentially an ‘L-shape’, resulting in a site with frontages to both Railway Parade to the north, and Garfield Street to the west.

  3. Together, the lots contain a pair of semi-detached dwellings; a two-storey residential flat building with detached garage; and a two-storey mixed use development.

  4. Development application DA2022/0431, lodged with Georges River Council (the Respondent) on 21 October 2022, proposed the demolition of all existing structures on the site, and the construction of a shop-top housing development being a six to seven storey building comprising 34 residential units, five commercial units and three levels of basement parking (the DA) at a site known as 348-352 Railway Parade, and 2-2A Garfield Street, Carlton.

  5. In general terms, the proposal is for two towers over a common podium, linked by basement carparking and circulation spaces. The taller tower fronting Railway Parade is identified at Tower A, and the lower tower fronting Garfield Street is identified as Tower B. Vehicular access to basement carparking is via Garfield Street, while pedestrian access to both Tower A and B is from Railway Parade.

Evolution of the appeal

  1. On 20 December 2022, the Applicant in these proceedings, Vortex Construction Pty Ltd, filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

  2. On 12 December 2023, the Court granted the Applicant leave to rely upon amended plans and Georges River Council, as the relevant consent authority, approved the amending of the DA by the Applicant in accordance with the amended plans and other documents for which leave was granted. The Court also directed the Respondent to file an Amended Statement of Facts and Contentions (later marked Exhibit 1) no later than 21 December 2024, and that experts in town planning and urban design confer on the amended development application and file an amended joint expert report by 31 January 2024 (later marked Exhibit 6).

  3. On the eve of the hearing, the Applicant once again sought to amend the application before the Court by Notice of Motion (later marked Exhibit C) comprising the following:

  1. Supplementary statement by All Arbor Solutions, dated 9 February 2024 (Tab 1).

  2. Amended Landscape Plans prepared by Conzept Landscape Design referred to in Supplementary statement by All Arbor Solutions (Tab 2).

  3. Architectural Plans prepared by Loucas Architects referred to in Supplementary statement by All Arbor Solutions (Tab 3).

  4. Proposed tree for replanting – Waterhousia Floribunda photograph (Tab 4).

  5. Amended Architectural plans prepared by Loucas Architects dated February 2024.(Tab 5).

  6. Amended Landscape Plans prepared by Conzept Landscape Design dated February 2024 (Tab 6).

  1. The Respondent opposed leave being granted to the Applicant to rely upon amended plans and other documents, as such an amendment at this late stage did not leave sufficient time for the Respondent’s experts to properly assess.

  2. However, I accept the Applicant’s submission, notwithstanding the late issue of the amended plans the subject of the Notice of Motion to the Respondent, after 5pm on the eve of the hearing, that the changes are limited to the following:

  1. Accessible WC and lift to the communal open space has been deleted to remove a height exceedance.

  2. A platform lift to Level 5 is added adjacent to stairs, south of Lift A.

  3. Tree 4, that is the subject of joint conferencing by the arboricultural experts, is now proposed for removal, and a replacement species is identified.

  1. The Court, in similar terms to those at [7], granted the Applicant leave to rely upon the amended plans and other documents the subject of the Notice of Motion and exercised, under s 39(2) of the Land and Environment Court Act 1979 (LEC Act), the functions and discretions of Georges River Council, as the relevant consent authority, to approve the amending of the DA by the Applicant, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, in accordance with the amended plans and other documents for which leave was granted.

  2. The Court also granted the Respondent leave to further amend the Amended Statement of Facts and Contentions to reflect both the resolution of some issues as a result of the amendments at [8], the correction of others, and the addition of certain particulars arising from the Notice of Motion.

  3. A timetable was then set by the Court, said by the Respondent to impose an unreasonable expectation on the experts assisting the Court on behalf of the Respondent, in response to which the Court re-iterated its view the limited compass of amendments permitted the experts to reduce to writing their position(s) in a short supplementary joint report after conferral.

  4. That said, the Court granted a later start to the hearing on the second day to accommodate the request of counsel for the Respondent.

  5. The Further Amended Statement of Facts and Contentions (FASOFAC) (Exhibit 2) was filed in accordance with the Court’s direction sometime after the close of the first day of the hearing.

  6. The FASOFAC identifies contentions under the following headings:

  1. Site isolation.

  2. Inappropriate bulk and scale.

  3. Lack of street activation and poor interface with the public domain.

  4. The proposal presents poor architectural expression, contrary to State Environmental Planning Policy No.65 – Design Quality of Residential Apartment Development (SEPP65), the Apartment Design Guide (ADG), the Georges River Local Environmental Plan 2021 (GRLEP) and Georges River Development Control Plan 2021 (GRDCP).

  5. The Application does not exhibit design excellence in accordance with Clause 6.10 of GRLEP.

  6. The Application proposed an unacceptable number of residential units with unacceptable amenity.

  7. Trees and Landscaping:

  1. The Application will result in an unacceptable impact on significant trees located within the site and adjoining sites.

  2. The proposed landscape scheme, tree planting on the site and streetscape is not appropriate and results in an adverse streetscape outcome.

  1. The Application does not demonstrate adequate management of waste.

  2. There is insufficient information as to whether the site is suitable in its state for the uses forming part of the Development.

  3. Right of way, that is capable of being resolved by condition.

  1. Having considered the particulars in respect of the contentions as expressed above, I am of the view that the issues can be distilled into four categories as follows:

  1. Site isolation.

  2. Design, bulk, form and amenity.

  3. Tree removal and Landscaping.

  4. Engineering and site hazards.

The site and its context

  1. As stated earlier, the site comprises four lots, legally described as follows:

  1. Lot A & B in DP 436296, otherwise known as 350 and 348 Railway Parade respectively;

  2. Lot 33 in DP 1916, otherwise known as 352 Railway Parade;

  3. Lot 4 in DP 9225, otherwise known as 2 and 2A Garfield Street;

  4. Lot 2 in DP 342165, that does not have a street frontage.

  1. Additionally, the land also benefits from a right of carriageway to access Lot 2 in DP 342165 over adjoining land fronting Garfield Street and identified as ‘Buckley Reserve’, and land at 354-356 Railway Parade, currently occupied by commercial premises.

  2. The frontage presenting to Railway parade measures 26.17m, and the Garfield Street frontage measures 12.19m, with a total site area of 1,474.6m2.

  3. The site falls from Railway Parade to the north, to the rear of the site in the vicinity of Garfield Street.

  4. To the north of the site is the railway corridor zoned SP2 Infrastructure according to the GRLEP.

  5. To the south-east of the site stands a three-storey brick residential flat building at No 1-5 Winchester Street.

  6. To the south-west of the site is a two-storey building comprising ground floor commercial uses, with residential apartments over, at No 4 Garfield Street.

  7. The site itself is located within the E1 Local Centre zone, according to the GRLEP, while land to the south and west of the subject site is zoned R4 High Density Residential.

  8. Shop top housing development is permitted in the E1 Local Centre zone, where consistent with the objectives of development in the zone that are as follows:

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

•  To encourage investment in local commercial development that generates employment opportunities and economic growth.

•  To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

•  To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

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

•  To encourage development that is compatible with the centre’s position on the centres hierarchy.

  1. I note here that the proceedings commenced with an onsite view at which the Court, in the company of the legal representative and experts heard an oral submission from a resident of the area, whose written submission appears in Exhibit 3, Tab 20 and expresses concerns under the following headings:

  1. Privacy.

  2. Backyard privacy and sight lines.

  3. Commercial tenancy.

  4. Sound reflection.

  5. Streetscape.

  6. Solar access.

  7. True environmental impacts.

  1. The Court was then taken to the rear of the subject site to observe existing trees both on the site, and on adjoining sites, and the boundary between the subject site and No 4 Garfield, and 1-5 Winchester Street. Finally, the Court was taken the Garfield Street frontage where the Court’s attention was drawn to the character of the area.

Expert evidence

  1. The Court was assisted by expert evidence in the following disciplines:

  1. Town planning and urban design:

  1. Mr Jeff Mead, on behalf of the Applicant and Ms Linley Love, on behalf of the Respondent.

  2. Mr Theo Loucas, on behalf of the Applicant, and Ms Roopali Pandey, on behalf of the Respondent.

  1. Arboriculture:

  1. Mr Owen Tebbutt, on behalf of the Applicant, and Mr Craig Kenworthy, on behalf of the Respondent.

  1. The experts in town planning and urban design conferred in the preparation of a joint expert report cited at [7], and filed a supplementary joint report responsive to the FASOAC filed 12 February 2024 (Exhibit 7).

  2. The experts in arboriculture conferred in the preparation of a joint expert report that was likewise responsive to the SOFAC filed 21 December 2023 (Exhibit 4) and filed a supplementary joint report responsive to the FASOFAC at Exhibit 5.

Site isolation

  1. The Respondent contends that the Applicant has failed to adequately demonstrate efforts to acquire adjoining site at 4 Garfield as encouraged by provisions of the Georges River Development Control Plan 2021 (GRDCP).

  2. I note here the town planning and urban design experts agree that the property at No 354-356 Railway Parade is not isolated by the proposal.

  3. In respect of No 4 Garfield Street, the experts agree the site can be redeveloped for residential purposes. However, the experts disagree whether the form of the development on that site would be appropriate in urban design terms.

  4. While a valuation report was prepared in respect of No 4 Garfield Street (Exhibit B, Tab 6), in the Respondent’s view it does not consider the value of that site in the context of development on the subject site. However, it is accepted by the experts that offers to acquire No 4 Garfield Street have been made, and rejected, and that there is no impediment to this site amalgamating with the adjoining site at No 6-8 Garfield Street in the future.

  5. That said, the disagreement set out at par 3.2 of the joint report (Exhibit 6), is whether the form of development on that site would be appropriate from an urban design perspective.

  6. To this end, while architectural concept plans for each site form part of the architectural plans (Exhibit C, Tab 5), they are deficient in the following ways:

  1. They do not demonstrate that compliance with the Apartment Design Guide (ADG) can be achieved.

  2. Sections and elevations are missing.

  3. Building service details are missing.

  1. The Respondent also considers the proposed zero setback to the southern boundary of No 4 Garfield, depicted in the concept plans, inconsistent with the direction in Objective 3F-1 of the ADG to increase the building separation at a zone interface by 3m, resulting in a total of 9m separation between built form on No 4 Garfield Street and the land zoned R4 to the south.

  2. Mr Mead relies on a prior consent that permits residential development to the boundary that Ms Love considers irrelevant given current controls apply, and not those applicable in 1991 when the prior consent was granted.

  3. Instead, the controls relevant today are those at Part 7.1.2(1) of the GRDCP that are in the following terms:

1. A minimum street frontage of 27m is required for new developments taller than 3 storeys to ensure the provision of an active street frontage is prioritised while allowing for adequate car parking and the provision of essential services.

2. Exceptions to the minimum street frontage will be considered if at least two-thirds of the street frontage is allocated to active uses such as shopfronts and lobby entrances.

3. Utility services and infrastructure are to be consolidated to minimise impacts on the streetscape and pedestrian amenity.

  1. Finally, Ms Love considers development such as that depicted in the concept plan inappropriate for a site that adjoins land with a lesser FSR.

  2. While the land at No. 4 Garfield Street does not meet the minimum street frontage control of 27m, the architectural concept plan shows more than two-thirds of the street frontage is allocated to active uses of a type set out in Control 2. As such, an exception to the street frontage control should be considered.

  3. I also note the height of building standard of 21m that applies to the subject site also applies to the site at No. 4 Garfield Street, and for sites to the south of that site, and also applies to land on the western side of Garfield Street as well.

  4. This is consistent with Mr Mead’s opinion that the area is likely one in transition that may result in amalgamation in the future.

  5. While it is Ms Pandey’s view that the future desired character envisaged by Part 5.14.2 of the GRDCP is for a low density suburban residential character, this view is not consistent with the height standard of 21m, and FSR standard of 2:1.

  6. The source of this apparent disjunction may have its origins a typographical error in the Carlton South Locality Statement at Part 5.14.2 which states, at par 2 and 3:

There is a combination of high and low density residential dwellings within this locality. The high density areas are predominately comprised of three to four storey walk up units that were developed towards the end of the 20th Century. These are located between the railway line and Nelson Avenue. There is also a small pocket of high density residential zoned area along Princes Highway between Plant Street and Paris Street.

The remainder of the locality feature predominately detached single storey and two storey dwellings. The housing styles are mixed, with no particular style predominating. However, the areas around Nielsen Avenue and Anglo Square has retained a distinct architectural style of Federation style bungalows. There are also numerous properties dating to the post-war era with a varying degree of alterations and large contemporary houses becoming increasingly common throughout the area.

  1. Of relevance here is a reference to both high and low density residential dwellings in the locality.

  2. The apparent misunderstanding in Ms Pandey’s evidence may be as a result of the reference to ‘Nelson Avenue’ in par 2, which is perhaps corrected in par 3 to ‘Nielsen Avenue’. The Court is unable to identify a ‘Nelson Avenue’ in the locality, however it is clear that high density residential development is found between the railway line, and Nelson, or Nielsen Avenue. This area appears to include the subject site.

  3. Whether or not this is the case, the future desired character of the locality provides for both low and high density development as follows:

• Retain and enhance the existing low density suburban residential character through articulated contemporary developments that respond to the human scale.

• Encourage well-designed high density residential development where applicable.

…

  1. I accept Mr Mead’s evidence that there are a variety of ways in which development may occur on, or including, the site at No 4 Garfield Street in the future that may be acceptable and I consider the architectural concept plan of sufficient detail to understand the relationship between the subject application and No 4 Garfield Street, and to identify the likely impacts the developments will have on each other, and those to the south in terms of solar access, building separation and privacy impacts and the traffic impacts to Garfield Street.

  1. Provision is made for a shared basement so that vehicular access for residents of No 4 Garfield Street would be via No 2-2A Garfield Street. In my view, sufficient provision of space for lift, residential services, fire exit, fire isolated stairs, common lobbies and private open space is evident on the architectural concept plans. I do not accept that Objective 3F-1 of the ADG would expect a 9m setback to land to the south of No 4 Garfield Street given the layout shown clearly does not propose openings, and so a setback is not needed to ensure visual privacy.

  2. As such, I find efforts to acquire the site at No 4 Garfield Street have been made and, failing that, the site is capable of development in the future.

Design, bulk, form and amenity

  1. The FASOFAC enumerates numerous issues that I consider fall within the classification of design, bulk, form and amenity.

Street Wall height

  1. As I understand it, the Respondent considers the four-storey street wall height proposed to Garfield Street to be, in this instance, acceptable notwithstanding a departure from Part 7.1.2(3) of the GRDCP where, at Control 8, the street wall height to a local street is to be two storeys, with a minimum setback of 5m above that level.

  2. However, such a variation to Part 7.1.2 of the GRDCP is not warranted to the Railway Parade frontage because the Respondent considers the proposal inconsistent with the Railway Parade streetscape, firstly, due to the loss of Tree 4, and secondly, owing to the undesirable communal open space on the rooftop of Tower B.

  3. Ms Pandey states Tree 4, and trees on surrounding sites, enhance amenity for surrounding properties and reduce urban heat island effects in accordance with Part 3.2.1 of the GRDCP.

  4. The proposed removal of Tree 4 provides potential opportunity to increase the building footprint in the future, according to Ms Pandey, and so Ms Pandey states her view has changed from that expressed in Exhibit 6 to now no longer support variation to the upper level setback to the Railway Parade frontage.

  5. Ms Pandey’s written evidence is that discussion at an earlier conciliation conference sought, as I understand it, a balance between the setback to the rear boundary, and the setback at the upper levels of the Railway Parade frontage, to acknowledge the development potential of the site.

  6. Given the removal of Tree 4 is now proposed, Ms Pandey considers the terms of the agreement reached between experts in the joint expert report at Exhibit 6 to have changed, and so her view has changed accordingly.

  7. I accept Tree 4 was, at the time of joint conferencing in the preparation of Exhibit 6, to be retained. As such, it was unnecessary for terms as to its retention to be made explicit. However, I do not understand there to be a link between the character of Railway Parade and Tree 4 which all experts agree is not visible from Railway Parade and so I do not understand to be a relevant consideration when assessing the consistency or otherwise of the proposal with the Railway Parade streetscape.

  8. The location of Tree 4 is marked on the architectural plan titled ‘Ground Adjoining Floor Plan’ at Dwg A-960, as is the setback to the eastern boundary that provides a sightline to the rear of the site. From a careful reading of this plan, it is clear that Tree 4 would not be visible even it was retained.

  9. In fact, when the Landscape Plans are read, I understand there to be six Corymbia Maculata, or Spotted Gums, proposed to the eastern and southern setback in addition to the Waterhousia floribunda that is proposed to replace Tree 4. The Schedule to Landscape Plan LP-02 advises the mature dimensions of the Spotted Gum is 20m in height and 8m in spread.

  10. Mr Kenworthy considers the inclusion of these trees a good outcome (Exhibit 4, par 13.2 (9)), albeit qualified by observations on soil volume.

  11. I note the area of the site shown as planted out with these six Spotted Gums is deep soil, with dimensions that range in plan between 4.5m and 6m in the eastern setback, and virtually unencumbered to the southeast corner where the site adjoins No 1-5 Winchester Street and No 4 Garfield Street.

  12. I also do not understand Ms Pandey’s concern as to the potential for increase to the building footprint, presumably to the rear of the site, as being relevant to the appropriate street wall height at Railway Parade. There has been no change to the footprint in the area of Tree 4 subsequent to its proposed removal. There has also been no amendment to the southern elevation of units in Tower A, or to the setback of those units. Furthermore, I do not understand any aspect of the rear of the site to properly inform the appropriate street wall height at the site frontage.

  13. Finally, as no more is said in Exhibit 7 as to the adverse impact of the communal open space on the street wall height at Railway Parade, and no issue was taken with it in Exhibit 6, I record here my view that the communal open space to Tower B is so remote when viewed from Railway Parade as to be an irrelevant consideration as to the appropriate street wall height and setback at the upper levels of Tower A.

Building separation and visual privacy

  1. The Respondent identifies departures from design guidance contained in objective 3F-1 of the ADG. Given the relevant aim of the objective is to ensure new development is scaled to support the desired future character with appropriate massing and spaces between buildings, such departures are unacceptable.

  2. The offending setbacks are summarised as follows:

  1. External corridor circulation on the first four levels of the proposal is within 2.5m of the boundary with No 354 Railway Parade, and not 6m as required by Objective 3F-1 of the ADG for habitable rooms and balconies.

  2. Lift A is 500mm from the boundary with No 354-356 Railway Parade, and Lift B is setback 1.15m and neither of which comply with the ADG.

  3. The setback of Tower A to the southern boundary fails to comply with the setbacks of 6m required to the first four levels, and 9m to the levels thereafter, especially if sites to the west and south develop in the future.

  4. Setbacks to the eastern boundary from terraces on Level 4 and 5 compromise future development potential of the adjoining site at No 344 Railway Parade.

  5. Tower B, fronting Garfield Street, is proposed to be built with zero setbacks to the north and south boundaries on a site that is 12.19m wide.

  1. Failure to conform to the setback requirements of Objective 3F-1 of the ADG are exacerbated, once again, by the removal of Tree 4, according to Ms Pandey.

  2. I note here that parties, when asked during the hearing, jointly submit that the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) apply, notwithstanding its repeal by State Environmental Planning Policy (Housing) 2021 (Housing SEPP).

  3. I am not sure this is the case, because it appears at the time of the hearing, the repeal of SEPP 65 was not saved by the provision at Schedule 7A of the Housing SEPP, as the repeal was given effect by State Environmental Planning Policy Amendment (Housing) 2023 that did not, on 14 December 2023 contain a savings provision in the form that now appears in Sch 7A of the Housing SEPP until after the close of the hearing, and before the Court delivered judgment.

  4. Nevertheless, where an application relates to residential apartment development, s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) requires a development application to be accompanied by a statement by a qualified designer (the designer’s statement), defined in the Dictionary of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.

  5. Section 29(2) of the EPA Regulation requires the designer’s statement to comprise the following:

(a)  verify that the qualified designer designed, or directed the design of, the development, and

(b)  explain how the development addresses—

(i)  the design principles for residential apartment development, and

(ii) the objectives in Parts 3 and 4 of the Apartment Design Guide.

  1. The designer’s statement must conform to the provisions of s 29(2) of the EPA Regulation, which include attestations virtually identical to those formerly at cl 28(2)(b) and (c) of SEPP 65, and now virtually identical to those at s 147 of the Housing SEPP, in the event it applies.

  2. In written submissions filed after the close of the hearing, the parties jointly submit that the provisions of Ch 4 of the Housing SEPP apply to the proposal. In particular, s 147 requires consideration of the quality of the design of the development to be evaluated in accordance with the design principles set out in Sch 9 of the Housing SEPP (being identical to those principles that were otherwise contained in Schedule 1 of SEPP 65); the ADG and any advice received from a design review panel.

  3. Whether the Housing SEPP applies in this case, or not, there is no contest that the design quality principles and provisions of the ADG are to be considered in this case, and I should consider the evidence of the experts who proceed on the understanding that SEPP65 applies to the development.

  4. I am satisfied that the designer’s statement provided by Mr Jim Apostolou (Reg No.7490) dated 4 December 2023 (Exhibit B, Tab 7) is in a complying form and addresses the design quality principles, and the objectives and design criteria of the ADG.

  5. Mr Mead regards building separation and visual privacy to be adequately addressed for reasons summarised as follows:

  1. External corridor circulation is different and distinct from habitable areas and balconies, and, in any event, these areas are screened to provide privacy to adjoining sites.

  2. The south facing units to Tower A are treated with high level windows only so that no visual privacy impacts arise.

  3. Where there are no openings, and visual privacy is not affected, a setback of 4.5m is permitted to the southern boundary to Tower A, and not 9m as Ms Pandey suggests.

  1. I accept and agree with Mr Mead’s summary of the steps taken to consider the visual privacy of neighbouring properties. I do not consider an external circulation space, in which a person is unlikely to dwell or gather, to function in the same way as a habitable room or balcony serving as private open space. Likewise, the location and treatment of openings, and the degree to which visual privacy is achieved is clearly a factor when Figure 3F-2 and the table at design criteria 1 are properly read.

  2. A setback to the southern boundary with No 4 Garfield Street that ranges between 5.45m and 6.45m is acceptable, in my view, given the limited opportunity for a sightline.

  3. In respect of the offending setback at [68(4)], I accept Mr Mead’s evidence at par 4.8 of the joint report (Exhibit 6) that a 3m setback to the eastern boundary with No 344 Railway Parade provides for relative continuity in the street in a manner consistent with the objectives of Part 7.1.2.3 of the GRDCP that provide:

Objectives

(a) Provide new development that spatially defines streets with well-articulated facades.

(b) Define street edge at the ground and lower levels of the retail and commercial areas.

(c) Reduce bulk, ensure adequate exposure to sunlight and ventilation, and create the opportunity for visual and acoustic privacy at the upper levels of mixed use buildings.

(d) Enable mixed use buildings with a residential component to be situated with adequate open space/balconies.

(e) Create cohesive streetscapes with consistent building alignments particularly at ground level.

(f) Ensure well-proportioned built forms that minimise the appearance of building bulk from the public domain to respect the human scale at street level.

  1. As such, I accept the street wall height to Railway Parade, to the extent it varies from Control 8(a), should be applied flexibly in accordance with s 4.15(3A)(b) of the EPA Act.

Interface with public domain

  1. The Respondent contends that the Railway Parade frontage provides only a narrow pedestrian entry, lift lobby and corridor that do not provide a direct visual or physical connection to the public realm or contribute to the streetscape.

  2. The particular pleaded by the Respondent in Exhibit 2 also records that a commercial tenancy fronting Railway Parade occupies over half the width of the ground floor of Tower A, around 600mm above the level of pedestrian access.

  3. Objective (b) at Part 7.1.3(5) of the GRDCP requires commercial uses addressing the street to provide an active street edge, and controls likewise seek an active street frontage.

  4. In oral evidence, Ms Pandey explained that her real concern was the potential for the ground floor façade to be modified at some point in the future if or when a substation is deemed required, as is her experience in other developments.

  5. This accords with Ms Pandey’s written evidence that, if a substation is included, it can only be accommodated along the Railway parade frontage which significantly comprises street activation, contrary to objective (3) of the E1 zone, which seeks to ensure residential development that contributes to a vibrant and active local centre.

  6. Mr Mead annexes a letter from Ausgrid (Exhibit 6, Annexure B) that he considers sufficient to assure that upgrade of an existing transformer in Buckley Reserve is required to service the site, in lieu of a dedicated substation on the site itself.

  7. I consider the written evidence contained in the Ausgrid letter deserves greater weight than a hypothetical advanced by Ms Pandey, and I conclude the commercial uses addressing the street are consistent with the street activation desired by GRDCP as they are presently proposed.

  8. Relatedly, I also consider the street frontage consistent with the provisions of cl 6.13 of the GRLEP insofar as commercial uses occupy the ground and upper ground floor, where not otherwise occupied by lobbies and essential services.

Internal amenity

  1. It is unclear why, in the FASOFAC, pedestrian access to the rooftop communal open space on Tower B is pleaded as a particular under the contention of lack of street activation and poor interface with the public domain. For reasons stated at [60], the space is not visible from the street. A similar particular is also contained under the contention headed Internal Amenity.

  2. Ms Pandey’s written evidence is that removal of the lift to the rooftop will require users requiring level or universal access to utilise the lift in Tower A, walk at least 30m to use a platform lift, and complete the journey in external conditions. It is not convenient or direct and, as such, is inconsistent with Objective 3D-1 of the ADG which promotes direct, equitable access to communal open space area from common circulation area, entries and lobbies.

  3. In particular, the Respondent identifies numerous apartments nominated to achieve a ‘Liveable’ status are located in Tower B, require residents to travel to Tower A on those floors where stairs are not otherwise shown, and a navigate a convoluted path to the common open space on the rooftop that is otherwise immediately above the apartment from which they have just departed.

  4. The amended plans at Exhibit C, Tab 5 also removes the Accessible WC and lift to the communal open space on the rooftop of Tower B, cited at [10(1)].

  5. Ms Pandey relies upon Objective 3D-2 of the ADG which seeks adequate areas of communal open space to enhance residential amenity and provide opportunities for landscaping.

  6. However, as the rooftop communal open space has no weather protection or toileting facilities, and no means of access via lift, the result is an undesirable space in inclement weather for the elderly, people with a disability and children.

  7. Mr Mead notes there is no requirement for WC facilities to the rooftop common open space, or the communal open space to the ground floor for that matter, and shade structures are proposed by condition of consent.

  8. While the proposal is described by the Applicant in terms of two towers, there is no level at which the two are not fused by connecting walkways. I consider the development one building with communal open space at the ground level, and at the rooftop of Tower B. Option for access and amenity will be familiar to residents and choices can be made accordingly. While imperfect, the rooftop communal open space enhances residential amenity and provides opportunities for landscaping.

  9. That said, at the conclusion of the hearing, I directed that plans be corrected to complete detail omitted by the late removal of the WC and lift serving the rooftop in Tower B. These plans were subsequently filed with the Court on 16 February 2024.

  10. In written submissions in closing, the Respondent identifies that the plans now show doors to access the platform lift in the common circulation area and plead that, absent further detail on these doors, the Court cannot be certain that the development will not breach the height control.

  11. I record here that the Court understands the door swings shown on plan to be no more than gates commonly required by platform lift manufacturers. As such, the scope of amendment to the plan does not go beyond the leave granted for corrections and completeness, and would not exceed the height control.

Overshadowing

  1. The Respondent contends that the proposal is inconsistent with Objective 3B-2 of the ADG, which seeks to minimise overshadowing of neighbouring properties during mid winter.

  2. Given the orientation of the site and lack of building separation to the Garfield Street frontage and southern boundary, the Respondent’s concern is for the overshadowing to No 4 Garfield Street.

  3. The proposal complies with the maximum height permitted by the controls and, as stated at [80], I find the setback of the proposal adequate to No 4 Garfield Street.

  4. The proposal observes a setback from Garfield Street that takes its cue from No 354-356 Railway Parade and Buckleys Reserve, not from the zero setback evident today at No 4 Garfield Street.

  5. On the basis of the shadow diagrams at architectural drawing A-3600 (Exhibit C), I note the combined built form of the proposal, and the conceptual built form at No 4 Garfield have been considered and demonstrate that solar access to the rear of adjoining residential development is achieved between 9am-12pm in mid winter.

Ceiling heights

  1. The Respondent contends that ceiling heights in the proposal do not comply with Objectives 4C-1, 4C-2 and 4C-3. In particular, the ceiling height of the ground floor commercial tenancy fronting Railway Parade is lower than the 4m preferred by Figure 4C.1 of the ADG and no weight should be given to the structural statement prepared by Dr Anthony Hasham OAM, of Structural Engineering Services Pty Ltd dated 12 February 2024 (Structural statement) (Exhibit K) given the qualified language contained therein. The Structural statement is said by the Respondent to equivocate on the location of columns that the RWS suggest ultimately determine the internal amenity of apartments, tenancies and carpark.

  2. Objective 4C-1, and the associated design criteria deals with minimum ceiling heights in habitable rooms, non-habitable rooms, attic spaces, and in mixed use areas.

  3. Objective 4C-2, and its associated design criteria provides for changes in ceiling heights to provide a hierarchy in spaces, and guidance on stacking service areas and co-ordinating bulkhead locations.

  4. Objective 4C-3, and its associated design criteria provides for flexibility over the life of a building, such that apartments at lower levels of a building may be capable of conversion to non-residential uses.

  5. The Structural Statement does not equivocate, but instead states that preliminary column locations have been identified, and the loads imposed on the residential levels analysed. Furthermore, the second paragraph of the Structural Statement is in the following unequivocal terms:

“We can confirm that the provided floor to floor height of 3.05m is adequate to provide a 2.7m clearance floor to ceiling in all the residential units. This is based on our calculations and our experience from previous project executed with this floor-to-floor height.”

  1. The designer’s statement, cited at [77], asserts in respect of Part 4C that the ceiling height of the ground commercial/retail floors is 3.3m and all residential floors are 2.7m which is compliant.

  2. Section details on architectural drawing A-3200 demonstrate how ceiling heights of 2700mm are achieved in habitable areas, and 2400mm in non-habitable spaces.

  3. While I consider the ceiling heights generally consistent with Part 4C of the ADG, this is not the case to the three office spaces shown on the ground floor to Tower A, which is one level below Railway Parade. These spaces are shown with kitchen and bathroom facilities but are labelled ‘Office/Reception’.

  4. Applying the design criteria at Objective 4C-1 to these spaces would result in ceiling height of 3.3m if the term ‘mixed use areas’ is understood to encompass the E1 zone in which the site is located. I note a ceiling height of 4m is only required by Figure 4C.1 where a café or restaurant is proposed, to allow for additional servicing needs.

  5. I note these commercial uses are necessary in the use and location proposed to define the proposed development as shop top housing, which is permitted in the E1 zone, as distinct from a residential flat building that is prohibited, according to the land use table cited by cl 2.3 of the GRLEP.

  6. Shop top housing is defined in the Dictionary of the GRLEP as follows:

shop top housing means one or more dwellings located above the ground floor of a building, where at least the ground floor is used for commercial premises or health services facilities.

  1. While not consistent with the design criteria at Objective 4C-1, I accept that bulkheads can be located over the bathroom and kitchen in the commercial tenancies to provide mechanical ventilation, and permit a ceiling height of 2700mm otherwise, which I accept is sufficient for small tenancies in this case.

Tree removal and landscaping

  1. The site contains fifteen trees. All are proposed to be removed as a result of the development.

  2. An Arboricultural Impact Assessment, dated 6 July 2022 was prepared by the Applicant’s aboricultural expert, Mr Owen Tebbutt (Original Report) (Exhibit A, Tab 5).

  3. The Original Report records that the assessment undertaken by Mr Tebbutt followed site inspections on 14 September 2021 and 4 July 2022 after which a Tree Assessment Schedule was prepared (Appendix 1).

  4. An Amended Aboricultural Impact Assessment, dated 1 December 2023 (Amended Assessment) (Exhibit B, Tab 9) assesses the incursion of works required by the development into the tree Protection Zone (TPZ) is in the order of 25%.

  5. For completeness, I also note Mr Tebbutt prepared a letter dated 1 December 2023 responding to concerns expressed earlier by Mr Kenworthy (Exhibit B, Tab 10).

  6. As a result of the amended plans at [8], Mr Tebbutt confirms in a letter dated 9 February 2024 (Arborists Addendum) (Exhibit C, Tab 1), the removal of Tree 4 is required, given an encroachment of 33% into the Tree Protection Zone (TPZ) by the proposal.

  7. The Applicant proposes to replace Tree 4 with a mature tree identified as a Waterhousia floribunda, an image of which is provided (Exhibit C, Tab 4).

  8. Mr Tebbutt also summarises steps that can be taken to reduce the disturbance of land in the vicinity of Trees T6, T7, T8, T9, T10 and T14, tree protection and irrigation, under the supervision of a Level 5 arborist.

  9. The Respondent contends that the removal of trees on the site, and the risk of failure to trees on adjoining land is contrary to the objectives and controls of Part 3.2.1 of the GRDCP that are useful to set out here:

Objectives

(a) Ensure the protection of existing trees which contribute to the visual amenity and environment of the LGA.

(b) Protect trees within and adjacent to all development sites.

(c) Maximise healthy tree canopy coverage across the LGA, so as to maximise reduction in the urban heat island effect.

(d) Identify responsibilities and requirements with respect to the protection, retention and replacement of trees.

(e) Provide processes which enable and facilitate citizen compliance with these provisions.

(f) Ensure all applications for tree removal and pruning are assessed on the basis of the best practice tree management principles.

Controls

1. Development is to comply with the provisions of the State Environmental Planning Policy (Biodiversity and Conservation) 2021.

2. Development is to comply with the provisions of the Biodiversity Conservation Act 2016 and the Biodiversity Regulation 2017.

3. Development is to comply with Council’s Tree Management Policy and Appendix 1 – Green Web Map and Biodiversity Guide on Council’s website.

  1. Part 2.2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 requires consent for the removal of trees in non-rural areas.

  2. As I understand it, the extent of tree removal that is proposed does not trigger the provisions of the Biodiversity Conservation Act 2016 and the Biodiversity Regulation 2017. I also note the trees are not part of a threatened species or endangered ecological community.

  3. The Georges River Tree Management Policy (Tree Policy) (Exhibit 3, Tab 10) provides, relevantly, for the following:

  1. A replacement ratio of 2:1 where approval is given to remove a tree. (folio 989)

  2. Planning and design of development should consider the potential conflict between trees and structure, the retention of prominent trees, and future growth both above and below ground. (folio 992)

  3. Where trees located on adjoining land are likely to be impacted, the construction process will need to be assessed as part of determining the development, including the viability of those trees in the long term.

  1. The Respondent also draws the Court’s attention to Appendix 1 of the Tree Policy, identifying T4 as a desirable locally endemic or native tree.

  2. Furthermore, the Respondent also contends that the removal of Tree T4 is contrary to the provisions of Part 3.3 of the GRDCP, the objectives of which are:

Objectives

(a) Contribute to the creation of a distinct landscape character for the Georges River LGA.

(b) Protect existing significant trees and vegetation as outlined in Council’s Tree Management Policy and Appendices.

(c) Promote healthy growth of canopy trees.

(d) Reduce the visual and environmental impact of buildings, structures and hardstand.

(e) Create attractive, comfortable, functional and safe streets, public domain and private domain.

(f) Complement and enhance the function of communal open space, private open space and setback areas.

(g) Provide habitat corridors for local wildlife species.

(h) Encourage infiltration of rainwater to the water table.

(i) Reduce urban heat.

(j) Protect existing natural rock outcrops.

  1. The controls at Part 3.3 provide:

Controls

1. Landscaping on site should be incorporated into the site planning of a development to (where appropriate):

i. Reinforce the desired future character of the locality;

ii. Maintain significant landscape features;

iii. Be consistent with any dominant species in the adjoining area of ecological significance;

iv. Incorporate fire resistant species in areas susceptible to bushfire hazard;

v. Provide planting within setback zones (setbacks identified within the relevant applicable parts of the DCP);

vi. Soften the visual impact of buildings, carparks and roads;

vii. Cater for outdoor recreation areas;

viii. Separate conflicting uses;

ix. Screen undesirable elements;

x. Provide opportunities for on-site stormwater infiltration, in particular around existing trees and vegetation;

xi. Consider the future maintenance requirements of landscaped areas;

xii. Protect the effective functioning of overhead, surface level or underground utilities; and

xiii. Improve the aesthetic quality of the development.

2. Landscape planting should achieve a mature height in scale with the structures on the site.

3. Where canopy trees, shrubs and groundcovers are required, preference should be given to incorporating locally indigenous plants listed in GRDCP 2021 Backyard Biodiversity Guide on Council’s website and Council’s Tree Management Policy (and its Appendix 1 – Tree Planting).

4. Hydrological issues should be considered at the early stages of design for development around and close to trees on development sites.

5. Public domain works including street tree planting should comply with Council’s relevant policies including:

i. Kogarah North Public Domain Plan

ii. Kogarah Street Tree Management Strategy and Masterplan 2009;

iii. Hurstville Street Tree Management Study 2015; and

iv. Georges River Public Domain Streetscape works specifications 2019.

6. Topsoil and mulch should be included in landscape areas and should contain organic matter to support plant growth.

  1. Mr Kenworthy has assessed T4 as being of high landscape significance, and so it follows in his view that such a tree should be retained.

  2. Instead, its removal contravenes objective (a) of Part 3.2.1 of the GRDCP to ensure the protection of existing trees, and will compromise the growing conditions of T15 by exposing it to sunlight and wind that is has not before experienced, contrary to objective (b).

  3. Removing such canopy from the site does not maximise the healthy tree canopy coverage in the area, being the focus of objective (c). Rather, the removal of T4 represents the loss of canopy to a swathe of canopy between Winchester and Garfield Street.

  4. That said, Mr Kenworthy supports the removal of Trees T5, T6, T10 and T13.

  5. Mr Tebbutt’s Original Report assessed the Useful Life Expectancy (ULE), significance and retention value of T4 to be Medium, and recommended its removal. When the architectural plans depicting the development the subject of the development application relevant at the time of Mr Tebbutt’s Original Report are consulted (Exhibit A, Tab 19), a setback ranging from 3250-4500mm was proposed in the vicinity of T4 at ground floor level. While not dimensioned, the basement car park ramp appears closer than this.

  6. The amended architectural plans in Exhibit B show a radius of 5m from the centre of T4 to the basement carpark ramp, and a greater setback to the built form at ground floor level. This setback is dimensioned on architectural plans in Exhibit C as 5450mm.

  7. The upshot of this is that the evolution of the architectural plans has increased the setback of built form from the TPZ of T4. As originally proposed, Mr Tebbutt had formed a view that T4 could not be retained. This view later changed in the Amended Assessment where, at par 4.3.1, Mr Tebbutt states T4 is to be retained.

  8. Subsequent to Mr Tebbutt’s Amended Assessment, the experts agreed the TPZ for T4 was larger than assessed by Mr Tebbutt, and so the incursion into the TPZ by the proposal was greater.

  9. In the supplementary expert report, Exhibit 5, the experts agree T4 is unlikely to survive with an incursion of 33%.

  10. As stated earlier, T4 is proposed to be replaced by a 200L Waterhousia Floribunda, and it is agreed the setback is sufficient for such a tree to reach maturity.

  11. It would appear the evolution of the arboricultural assessment of T4 has not been without error in recording certain characteristics of the tree, such as the Diameter at Breast Height, which assists in determining the radius of the TPZ and, from this, the extent of incursion likely into the TPZ.

  12. That said, I am satisfied the removal of T4 is a regrettable necessity of the development. The built form impacting the TPZ includes the basement car park circulation. Architectural dwg A-0850 shows the proposed basement level 1 plan, with future breakthrough and future right of way into basement car parking to No 4 Garfield street, and No 354-356 Railway Parade from the subject site.

  13. I consider there to be a long term public benefit to the interconnection of these sites at basement level, if provision for such a contingency is factored in to the development. Such an arrangement, if realised sometime in the future, would remove the need for two additional kerb cross overs leading to ground level openings to service basement car parks.

  14. The particular relevance of such an outcome is that, according to the statement in respect of traffic and parking prepared by CJP Consulting Engineers dated 6 December 2023 (CJP Report), Railway Parade is a classified road of a kind to which s 2.118 of State Environmental Planning Policy (Transport and Infrastructure) 2021 applies so as to direct investigation of alternative access.

  15. Both No 354-356 Railway Parade and No 4 Garfield Street have a frontage to Garfield Street, where access is preferrable to Railway Parade. However, the location of these frontages coincides with the intersection of Garfield Street and Shaftesbury Street, to which certain limitations apply in the locating of driveways when regard is had to Figure 3.1 of Australian Standard AS 2890.1:2004 (Exhibit B, 5, p 3).

  16. The CJP Report considers the impact of connecting basement parking to the adjoining sites, including swept paths and safety features such as traffic lights and mirrors, the number of spaces on the subject site provided before and after a potential breakthrough to the basement of No 354-356 Railway Parade.

  17. Whether or not interconnection of the basements occurs in the future, I accept that the basement layout that causes a substantial part of the incursion into the TPZ of T4 may facilitate a public benefit of a kind described above.

  18. I have also considered the landscape plan that proposes the replacement for T4, the Waterhousia Floribunda, and six Corymbia Maculata planted in an area of deep soil along the eastern setback, complemented by sub-canopy trees that include Native Watergum, Grey Myrtle as well as shrubs and hedges. A total of 13 trees are proposed, as are conditions of consent that require maintenance and replacement of trees in the event of failure.

  19. At maturity, the canopy proposed would maximise the healthy tree canopy, consistent with objective (c) at Part 3.2.1 of the GRDCP, providing a connection from Winchester Street to Railway Parade, which is greater than that evident today.

  20. For completeness, while Mr Kenworthy seeks to invoke the provisions of cl 6.12 of the GRLEP, subcl (2) makes clear that the provision does not apply to land within the E1 zone, and so no more will be said.

  21. While concerns are expressed by Mr Kenworthy as to the long term viability of T15, I accept Mr Tebbutt’s written evidence that it is reasonable to expect T15 will adapt to the change in its environment following the removal of T4, and the planting of its replacement.

Design excellence

  1. The FASOFAC contends, at Contention 6, that the architectural expression is contrary to SEPP65, the ADG, provisions of the GRLEP and GRDCP.

  2. The broad gamut of the contention is particularised in a manner I summarise as follows:

  1. Firstly, the proposal is not consistent with Design quality principle 9, as set out in Sch 1 of SEPP65.

  2. Secondly, the proposal fails to demonstrate certain of the design excellence provisions at cl 6.10 of the GRLEP

  3. Thirdly, the proposal is not consistent with best practice environmentally sustainable design when those matters at cl 6.11(3) of the GRLEP are considered.

Design quality principles

  1. For the reasons stated at [71] it is my view that, at the time of the hearing, SEPP65 was repealed and not saved by the terms of the savings provision in the Housing SEPP.

  2. However, as the Respondent particularises the breach of principle 9, aesthetics, in terms similar or identical to the design excellence provisions at cl 6.10(5) of the GRLEP, I will consider aesthetics, materials, colours and textures, fit with local context and streetscape below.

Design excellence

  1. As the proposal is for the erection of a new building for the purpose of residential accommodation in an E1 zone, the provisions of cl 6.10 pf the GRLEP apply to require the proposal to exhibit design excellence. In considering whether the proposal exhibits design excellence, regard must be had to those matters at cl 6.10(5) of the GRLEP.

  2. Subclause 6.10(5) is in the following terms:

(5)  In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters—

(a)  whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b)  whether the form and external appearance of the development will improve the quality and amenity of the public domain,

(c)  whether the development detrimentally impacts on view corridors,

(d)  how the development addresses the following matters—

(i)  the suitability of the land for development,

(ii)  existing and proposed uses and use mix,

(iii)  heritage issues and streetscape constraints,

(iv)  the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v)  bulk, massing and modulation of buildings,

(vi)  street frontage heights,

(vii)  environmental impacts such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,

(viii)  pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of pedestrian networks,

(ix)  the impact on, and proposed improvements to, the public domain,

(x)  achieving appropriate interfaces at ground level between the building and the public domain,

(xi)  excellence and integration of landscape design,

(xii)  the provision of communal spaces and meeting places,

(xiii)  the provision of public art in the public domain,

(xiv)  the provision of on-site integrated waste and recycling infrastructure,

(xv)  the promotion of safety through the application of the principles of crime prevention through environmental design.

  1. The Respondent identifies deficiencies in respect of those matters at subcl (5)(a), (b) and (d)(i), (ii), (iii), (v), vi), (vii), (viii), (ix), (x), (xi), xii), (xiii) and (xiv). However, the planning and urban design experts find no area of disagreement and propose, at par 5.1, the terms of a condition of consent in respect of finishes, colours and glazing.

  2. However, as shown by Preston CJ in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 (Toga), it is not sufficient for the Court to form an opinion as to whether the proposed development does or does not exhibit design excellence by having regard to the evidence of the urban design experts alone. Instead, cl 6.10 prescribes a framework for deciding whether a development exhibits design excellence (Toga, at [70]) and the Court must have regard to the particular terms of, and answer the particular questions raised by, the matters in the design excellence provisions (Toga, at [75]).

  3. For the reasons stated at [54]-[89], I consider streetscape constraints, separation, setbacks, amenity and urban form, bulk, massing and modulation, and street frontage heights and interface with public domain to be adequately addressed when regard is had to those matters at subcl(5)(d)(iii), (iv), (v), (vi), (ix) and (x).

  4. For the reasons stated at [145]-[153], I also consider vehicular access to be adequately addressed, and for the reasons set out at [98], I consider circulation acceptable.

  5. In considering the remaining matters at subcl (5), I am assisted by a design excellence statement prepared by Planning Ingenuity dated 22 June 2023 (Exhibit B, Tab 8),and I record the following:

  1. The proposed development is a form of development permitted in the zone and so I consider the site suitable (subcl (d)(i), with a range of proposed uses that include residential and commercial, consistent with the E1 zone and the uses present in the local area today (subcl (d)(ii)).

  1. In respect of the environmental impacts of a sort at subcl (d)(vii):

  1. Sustainable design is demonstrated by conformity with BASIX requirements, and the Building Code of Australia (BCA) requirements for water, energy, thermal comfort and materiality. Calculations on architectural drawing A-4300 identify 73.5% of apartments receive at least 2 hours of sunlight during the day, and 61.7% of apartments are able to naturally cross ventilate.

  2. For the reasons set out at [102]-[106], I find overshadowing and solar access acceptable.

  3. For reasons set out at [51] and [79], I find visual and acoustic privacy acceptable in terms required by subcl (d)(vii).

  4. As the site is located in close proximity to the Illawarra railway line, the site is subject to rail noise and vibration. On the basis of the Acoustic Report prepared by Acoustic Noise and Vibration Solutions dated 25 August 2022 (Exhibit A, Tab 9), I find appropriate measures are proposed of a kind consistent with s 2.100(3) of State Environmental Planning Policy (Transport and Infrastructure) 2021. As such, I consider noise to also be adequately addressed in terms required by subcl (d)(vii).

  1. In respect of excellence and integration of landscape design, and the provision of communal spaces and meeting places, I note the area of communal open space at ground level is shown to be 438m2 (architectural drawing A-4000), and 202m2 at the rooftop of Tower B (drawing A-4100). Notwithstanding the surprising admission by Mr Loucas that the communal open space at ground level is not designed to be accessible given the variation in levels between the common building circulation and the communal open space, a portion of the ground level communal open space with seating and canopy shade is accessible. Additional to this, the rooftop open space is accessible. As such, choice between two large areas of communal open space is available for residents and visitors.

  2. As for integration of landscape, landscape planting is integrated at all levels of the building, in private and communal open space. As such I consider subcl (d)(xi) and (xii) sufficiently addressed.

  1. Having considered those matters at subcl (5)(d) as are relevant to the development the subject of the development application, I conclude that a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved (subcl (5)(a)); that the form and external appearance of the development will improve the quality and amenity of the public domain (subcl (5)(b)), and that no view corridors are impacted (subcl (5)(c)).

Environmentally sustainable design

  1. The Respondent also contends in the FASOFAC that the proposal lacks adequate consideration of environmental sustainability when assessed against the provisions of cl 6.11(3) of the GRLEP. In particular, design solutions that integrate vertical gardens in the building facades must be explored in order to enhance visual appeal and address sustainability.

  2. The provisions at cl 6.11(3) of the GRLEP are as follows:

(3)  Development consent must not be granted to development on land to which this clause applies if the building is 1,500 square metres in gross floor area or greater unless adequate consideration has been given to the following in the design of the building—

(a)  water demand reduction, including water efficiency, water recycling and minimisation of potable water usage,

(b)  energy demand reduction, including energy generation, use of renewable energy and reduced reliance on mains power,

(c)  indoor environmental quality, including daylight provision, glare control, cross ventilation and thermal comfort,

(d)  the minimisation of surfaces that absorb and retain heat and the use of surfaces that reflect heat where possible,

(e)  a reduction in new materials consumption and use of sustainable materials, including recycled content in concrete, sustainable timber and PVC minimisation,

(f)  transport initiatives to reduce car dependence such as providing cycle facilities, car share and small vehicle parking spaces.

  1. No aspect of the provisions at cl 6.11(3) deal with vertical gardens, building facades or visual appeal. While not a vertical garden as such, I note landscape planting is integrated into the proposal at every level of the building.

  2. I also note that this particular is pleaded under Contention 6, about which the experts are wholly agreed but for the terms of a condition of consent in respect of finishes, colours and glazing.

  3. The terms that are required to be considered by subcl (3)(a)-(f) are similar to the consideration of sustainable design set out at [165(2)], supplemented by the following:

  1. The BASIX certificate (Certificate No.1735958M, dated 15 February 2024), filed with the Court on 16 February 2024, records low water use species of vegetation are provided, and the star rating of showerheads, toilets, taps and washing machines.

  2. Likewise, energy reduction and energy efficiency measures set out in the BASIX certificate include motion sensor lighting, and fluorescent lighting.

  3. The site is located in close proximity to the Carlton Railway station. However, cycle facilities are also incorporated into the basement. The Traffic and Parking Assessment prepared by Varga Traffic Planning dated 23 August 2023 (Exhibit A, Tab 7) records 18 bicycle parking spaces are provided.

  1. On the basis of the agreement between the experts, and the reasons set out above I note that the test at cl 6.11(3) is whether adequate consideration has been given to environmental sustainability. While it may be said that not more than adequate consideration has been given, I accept that failure to undertake more than adequate consideration is not a test set out in the provisions and so is not a reason for refusal.

Engineering and site hazards

  1. The Respondent submits that the terms of the Detailed Site Investigation are inadequate to the extent it concludes the site is contaminated, and that a Remedial Action Plan (RAP) is required. As the precise location of the contamination and the method of remediation are unknown, the Court cannot be satisfied that the site will be suitable for the development proposed to be carried out on the site as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

  2. However, the Respondent’s submissions are also to the effect that the location of the contamination, being in the vicinity of the root ball of Trees T7 T8, T9 and T14 is such that remediation may compromise the viability of those trees.

  3. The DSI (Exhibit D) was tendered on the final day of the hearing, and the Respondent was granted leave to reserve its position, to be considered in written submissions in closing.

  4. At par 30 of the RWS, the Respondent submits Borehole 5C fails to identify the size or extent of contamination. Furthermore, absent a remediation action plan, the long term viability of Trees T7, T8, T9 and T14 is uncertain.

  5. The DSI does indeed qualify the extent of contamination. It does so on the grounds the site is currently occupied by buildings that prevent access to all parts of the site such that testing cannot be completed.

  6. The DSI also notes that the nature of contamination identified on site is not at such levels that would preclude the site from being made suitable for the purpose of the development proposed to be carried out, subject to certain recommendations. Those recommendations include the preparation of a Remedial Action Plan, that is likely to require the off-site disposal of the shallow fill to be removed for basement excavation.

  7. Furthermore, the DSI recommends the remediation strategy should be developed in conjunction with an arborist where remediation is proposed within any TPZs.

  8. On the basis of the DSI, and its recommendations, I consider the investigation undertaken so far to be sufficient to determine whether the site is contaminated (it is) and to conclude that the site will be made suitable by means of remediation before the land is used for the purpose for which development is proposed.

  9. With this in mind, I conclude a RAP should be prepared after further testing is undertaken on the site, sometime after the removal of the built form. Before this time, preparation of a RAP may be premature and speculative.

  10. Accordingly, I accept the Applicant’s position that the RAP should be an operative condition of consent, and is appropriate in the terms proposed by the Applicant at condition 43A.

Jurisdictional preconditions

  1. The site is not identified on the relevant Acid sulfate soils at cl 6.1(2) of the GRLEP as being of any class of such soils.

  2. The proposed development requires earthworks in the form of excavation for basement parking and the like. The Applicant relies upon a Geotechnical Investigation prepared by EI Australia dated 26 August 2022 (Exhibit A, Tab 14) that summarises subsurface conditions in Table 3-1, observes groundwater was not found during investigations on the site, and provides recommendations in Section 4 of the report. However I note the without prejudice conditions of consent also provide for further geotechnical investigation.

  3. Stormwater plans prepared by John Romanous & Associates (Exhibit B, Tab 3) depict stormwater drainage for an earlier iteration of the proposal. Nevertheless, the Stormwater plans are identified in the schedule of approved plans at Condition 3 of the without prejudice conditions of consent, and additional conditions of consent require the preparation of updated and more detailed stormwater drainage plans.

  4. I have considered those matters at cl 6.2(3) of the GRLEP required to be considered. On the basis of the Geotechnical Investigation, and Stormwater Plans above, I conclude the earthworks for which consent is required will not have a detrimental impact on the environmental functions and processes, neighbouring uses, or other features of the surrounding land. In reaching this conclusion I note the Stormwater plans denote waterproofing to the external face of the basement and lift wells, and geotextile drainage cell and backfill absent of fines in subsoil drainage details to basement retaining walls. I also note section details describe the filtration and drainage to planter details at elevated levels of the building.

  5. Relatedly, and having regard to the Landscape Plans, I am satisfied that the development is designed to maximise the use of water permeable surface, includes on site detention of stormwater to minimise the rate at which runoff is dispelled, and so avoids adverse impacts on the adjoining properties and downstream stormwater system so as to minimise the impact on public drainage systems, in accordance with cl 6.3 of the GRLEP.

  6. The site is also located within the Georges River Catchment. As such, the provisions of Part 6.2 of the Biodiversity SEPP apply. I have considered the Stormwater drainage system as proposed in the Stormwater Plans, including notations on the plans as to filtration from geotextile fabric at backfill interface, silt arrestors and the like. On the basis of the stormwater drainage system proposed, and as is proposed to be further detailed by conditions of consent, I am satisfied the effect on the quality of water entering any natural waterbody will be as close as neutral or beneficial, when the contribution of the development to the public stormwater systems is factored, and by virtue of the OSD, that water flow in any waterbody will be minimised as a result of the development, in accordance with s 6.6 of the Biodiversity SEPP.

  7. Accordingly, I am also satisfied that no direct, indirect or cumulative adverse impact will accrue to terrestrial, aquatic or migratory animals of vegetation, nor any adverse impact on aquatic reserves or wetlands, or erosion as a result of the development within terms set out in s 6.7 of the Biodiversity SEPP.

State Environmental Planning Policy (Building sustainability Index: BASIX) 2004

  1. As stated at [171(1)], the application is accompanied by a BASIX certificate prepared by Arcadia Construction (NSW) Pty Ltd Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004).

  2. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) has the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.

Conditions are disputed

  1. At the conclusion of the hearing, the parties were directed by the Court to confer and, if possible, agree a commonly held set of without prejudice conditions of consent, should the Court be minded to grant consent. In the alternative, if agreement was not reached, parties were to provide conditions of consent with short submissions on the areas of disagreement.

  2. Parties complied with the Court’s direction in the alternative, providing a set of conditions of consent around 6pm, 16 February 2024.

  3. The principal difference between the parties is twofold:

  1. Firstly, the appropriate timing of a RAP, which is dealt with above at [173]-[182].

  2. Secondly, design changes sought by the Respondent prior to consent being operative.

  1. The changes sought by the Respondent are in the following terms:

The following design changes are to be made and approved by Council's Manager, Development and Building:

Street Activation

A letter from Ausgrid detailing that a substation is not required to convert and provide electricity for the proposed development as well as potential development at No.4 Garfield Street.

The floor to ceiling height (floor to ceiling) of the ground floor commercial / retail should be minimum 4.0m

The main door of the pedestrian access off Railway Parade should be at parallel to and at 0m setback to Railway Parade and the booster assembly setback. The residential and commercial entries should be clearly identifiable and distinguishable from the public domain. Detail plans, elevations, sections and materiality should be provided for approval by Council's Manager, Development and Building.

Built Form

The layout of Unit A 4.02 and 5.01 should be amended to comply with the minimum 9m ADG setback (building separation) required to the eastern boundary. Unit A 5.01 terrace should be located along the street frontage to maintain privacy to the east and provide passive surveillance to Railway Parade. Detail plans, elevations and sections should be provided for approval by Council's Manager, Development and Building.

Communal Open Space

The communal open space within the eastern side setback should be tiered to address the existing topography, minimise excavation and steps. Amended landscape and architectural plans should be provided to Council's Manager, Development and Building, for approval. 

  1. The Respondent seeks to impose a timeframe of three years by which time such changes must be evidenced, or documentation provided, pursuant to s 4.53(6) and (6A) of the EPA Act.

  2. As stated at [89], I consider the letter from Ausgrid sufficient for the purposes of addressing whether or not a substation is required.

  3. As stated at [115], there is no such requirement for the ceiling height to be 4m, given the variety of uses that may occupy the commercial tenancy fronting Railway Parade and for which a ceiling height of 3.3m is required.

  4. The pedestrian entry is set back from the street which allows the outward swing of the entry door to avoid conflict with pedestrians on the Railway Parade frontage. Furthermore, the door is parallel to Railway Parade at present. The booster assembly is integrated into the façade. It is unclear what purpose the change sought by the Respondent serves, and is no reason for refusal or deferring the commencement of any consent.

  5. As stated at [81] the setback to the east is acceptable.

  6. The Communal open space to the east is accessible via 1:14 ramp, and otherwise is well landscaped, with canopy and sub canopy trees located in deep soil. There are no grounds for a redesign of this space that should have the effect of deferring commencement of any consent.

  7. The Applicant contests the sum required to be guaranteed at Condition 7 by bank security in the event excavation for the basement car park is to be supported by the use of below ground (cable) anchors. I see reasons to disturb the sum of the guarantee given the scale of the development, and likelihood of the security being called upon, if executed with appropriate care and diligence.

  8. Condition 12 as proposed by the Respondent requires the undergrounding of overhead powerlines at the street frontage of the site. Unassisted by substantive submissions on the subject, the Applicant merely submits the condition is unreasonable. I do not agree. Section 6.3.3 of the GRDCP, Control (7) states that powerlines in the street verge in front of new development to which this part applies, being relevantly for shop top housing, will be undergrounded.

  9. Undergrounding of powerlines in the road reserve immediately adjacent to the site is not for an improper purpose, and is not manifestly unreasonable. Instead, the condition as proposed by the Respondent has the effect of improving the amenity of the area immediately adjacent to the development, which was found to be a proper subject of an approval by the Court of Appeal, at [20], in Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308.

  10. While not contested by the Applicant, I note a condition is proposed that requires design changes so that every level above the basement must replicate the same footprint vertically to ensure the canopy of Tree 4 is retained and impacts minimised. As Tree 4 is to be removed and replaced, this condition serves no purpose and is deleted.

Orders

  1. The Court orders that:

  1. The appeal is upheld.

  2. Development application DA2022/0431 for the demolition of all existing structures on the site, and the construction of shop top housing development comprising 34 residential units, 6 commercial units and 3 levels of basement parking at 348-352 Railway Parade, and 2-2A Garfield Street, Carlton, is determined by the grant of development consent, subject to conditions of consent at Annexure A.

  3. All exhibits are returned except for Exhibits A, C and 8.

T Horton

Commissioner of the Court

Annexure A

**********

Amendments

26 April 2024 - Amendment made to the table of approved plans and a typographical error at condition 46 of Annexure A pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005.

Decision last updated: 26 April 2024

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

15

Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117
Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308