Wy Constructions Pty Ltd v Canterbury - Bankstown Council

[2017] NSWLEC 1671

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	WY Constructions Pty Ltd v Canterbury – Bankstown Council [2017] NSWLEC 1671
Hearing dates:	2-3 November 2017, further submissions 20 November 2017
Date of orders:	28 November 2017
Decision date:	28 November 2017
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The applicant is granted leave to rely on amended plans. (2) The applicant is to pay the Respondents costs thrown away as a result of first set of amended plans pursuant to s 97B as may be agreed or assessed. (3) The objection pursuant to cl 4.6 of the Canterbury Local Environmental Plan 2012 is upheld. (4) The appeal is upheld. (5) Consent is granted to Development Application No. DA/186/2016 for demolition of existing structures and construction of a three storey residential flat building with basement car parking at Lot 89, DP 417, 27 Fletcher Street, Campsie, subject to conditions in Annexure ‘A’. (6) The Exhibits are returned with the exception of Exhibits 1, J, L and the amended documents filed with the Court on 20 November 2017.
Catchwords:	DEVELOPMENT APPEAL: Proposed affordable rental housing – requested variation to height – whether the breach of height and setback controls results in a development that is uncharacteristic in the locality – whether the variation in height creates an unacceptable impact on the adjoining neighbours – whether the vertical level of onsite detention relative to Council’s infrastructure is acceptable – amended design – experts agreed.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 Marinkovic v Rockdale City Council [2007] NSWLEC 71 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7
Texts Cited:	Nil
Category:	Principal judgment
Parties:	WY Constructions Pty Ltd (Applicant) Canterbury – Bankstown Council (Respondent)
Representation:	Counsel: Mr A Pickles (Applicant) Ms R McCulloch (Respondent)   Solicitors: Conomos Legal (Applicant) Pikes Verekers Lawyers (Respondent)
File Number(s):	2017/63175
Publication restriction:	No

Judgment

1. COMMISSIONER:    This appeal has been lodged in response to the refusal by Canterbury - Bankstown Council of consent for a residential flat building to be utilised in part for affordable housing. The applicant seeks approval for a three storey building containing nine residential units. The nine units comprise four affordable housing dwelling and five standard two bedroom units. The development is proposed at 27 Fletcher Street, Campsie.

2. Following the termination of the conciliation and the joint conferencing of the planning experts the applicant made amendments to the proposed development. The applicant was granted leave by the Court to rely on amended plans and documentation on 1 August 2017. These plans entail the following main changes:

1. a reduction in the gross floor area of the proposal by some 650m²;

2. an amendment to the design of the proposal to provide a two storey, pitched roof appearance to the street;

3. an increase in the front setback;

4. an increase in the provision of deep soil areas;

5. amendments to the design of the onsite detention tank; and

6. removal of the mechanical car stackers.

3. An amended set of plans were tendered at the commencement of the proceedings that sought to incorporate the suggested amendments of the experts. Leave was granted to the amended plans and the commencement of expert evidence delayed. The determination of any costs applicable was reserved and is addressed later in this judgement. These amended plans entail the following main changes:

1. Unit 202 amended to be a one bedroom unit and redesigned to be compliant with the 3m side setback. This resulted in subsequent amendments to the roof form and balcony design;

2. Amendments to the deep soil zone provision;

3. Amendments to the roof heights and profile to reflect room changes; and

4. Roof of stair amended and the roof to the north wing of the proposal changed to a flat roof.

4. At the commencement of the second day the applicant sought leave to further amend their application in response to the further joint conferencing of the experts. This was not objected to by the Council, subject to consideration by the Court of any costs applicable. This further set of amended plans incorporated the following main changes:

1. the relocation of the waste collection and plant room in the basement level to allow the size of the basement to be reduced by the relocation of the southern wall of the basement.

2. The relative level (RL) of the basement was amended from RL 34.06 to RL 34.11.

3. the entry pathway to the development was relocated to increase landscaping to the western boundary and accommodate additional tree planting in the front setback.

4. Translucent screens added to Level 2 units and additional privacy balustrade to Unit 201.

5. Lift overrun reduced by 500mm.

The site and its context

5. The subject site is legally described Lot 89 in DP 4178 with a street address of 27 Fletcher Street, Campsie.

6. The property is a single allotment with some 15m frontage to Fletcher Street and an area of 650.29m². The site is relatively flat with a slight fall from the rear to street.

7. The site is zoned for high density residential, along with the adjoining properties on the northern side of Fletcher Street. The existing built form in this section of Fletcher Street is characterised by multi dwelling housing in two storey pitched roof forms. At the rear of the development site is a three storey residential flat building which fronts Beaumont Street.

8. Development on the southern side of Fletcher Street (opposite the subject site) is predominantly single storey dwelling houses.

Public submissions

9. No residents addressed the Court as part of the hearing.

10. The Council tendered submissions from two parties that raised the following issues in relation to the application:

1. Concerned that the development breaches the maximum allowable height;

2. Redevelopment of the site for townhouse style development would be a preferable approach; and

3. Concern that the development will impact the availability of parking and the traffic volume in Fletcher Street.

Planning Controls:

11. The application is lodged utilising the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (‘SEPP ARH’) and Division 1: Infill affordable housing applies.

12. The application relies on clause 13 of SEPP ARH which provides addition floor space to the development on the basis that a percentage of the gross floor area is utilised for the purposes of affordable housing. In the current matter this clause provides an additional allowable floor space ratio (FSR) for the site of 0.5:1, which results in an overall maximum FSR of 0.97:1

13. At cl 14, SEPP ARH provides a number of standards that cannot be utilised to refuse consent, relevantly this includes landscaped area (cl 14(c)) and deep soil zones (cl 14(d)).

14. At cl 16A, the SEPP ARH requires the consent authority to take into consideration whether the design of the development is compatible with the character of the area prior to determination.

15. Canterbury Local Environmental Plan 2012 (‘LEP 2012’) applies to the site. Under LEP 2012 the subject site is zoned R4: High Density Residential Development. The objectives of the zone are:

“- to provide for the housing needs of the community within a high density environment

- to provide a variety of housing types within a high density environment

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

A residential flat building is permitted with consent.

16. Pursuant to cl 4.3 Height of Buildings, the maximum height for buildings on the site is 8.5m. The proposal has a maximum roof ridge height of RL 47.87, which results in a maximum height above natural ground level of 9.6m, an exceedance of 1.1m.

17. The objectives of cl 4.3 Height of Buildings are:

“(a) to establish and maintain the desirable attributes and character of an area,

(b) to minimise overshadowing and ensure there is a desirable level of solar access and public open space,

(c) to support building design that contributes positively to the streetscape and visual amenity of an area,

(d) to reinforce important road frontages in specific localities.”

18. LEP 2012, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances.

19. However, consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3), namely:

“(a) 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.”

20. Whether the Court accepts the applicant’s clause 4.6 variation request in relation to the variation of the maximum height of the development is a jurisdictional precondition to consent.

21. The development is subject to the requirements of Canterbury Development Control Plan 2012, Amendment 3 (‘DCP 2012’). The following provisions of the DCP are relevant to the appeal:

1. Part 2, Clause 2.1.7: Setback controls.

2. Part 2, Clause 6.2.6: Daylight and sunlight access.

3. Part 6.4, Clause 6.4.11: Disposal of run off from property.

Expert Evidence

22. In line with the issues in dispute in the proceedings the parties engaged experts in engineering and town planning.

1. The experts for the applicant were:

• Dr Anthony Hasham - Engineering;

• Mr Michael Brewer - Town Planning.

The experts for the respondent were:

• Mr Elias Elias - Engineering;

• Ms. Kerry Gordon - Town Planning;

23. Joint expert reports were prepared and filed in each of the disciplines. I have read and considered those reports. The planning experts also prepared and filed a supplementary report addressing the amended plans (Exhibit 7).

24. As a result of the joint conferencing process before the hearing the experts reached agreement in relation to the following issues.

1. Planning

• That the property adjoining, 1/25 Fletcher Street will retain at least 2 hours solar access to a reasonable portion of its private open space.

• That the property adjoining, 1/29 Fletcher Street will retain at least 2 hours solar access to a reasonable portion of its private open space.

• That the property adjoining, 2/29 Fletcher Street will retain at least 2 hours solar access to a reasonable portion of its private open space.

• That privacy screens should be provided on either sides of the balconies to Apartments 101, 102, 103, 104 and 201 to a minimum height of 1.6m to ensure privacy to adjoining properties.

• That any consent should include a condition that requires privacy screening of the relevant windows in Apartment 202 to ensure privacy to adjoining properties.

• (Exhibit 3)

2. Structural engineering

• That the contention in relation to insufficient detail supporting the achievement of a typical floor to floor height of 2.7m is resolved by the additional information provided by the applicant and a condition of consent (Exhibit 4).

The hearing

25. Following the onsite view the hearing was delayed to allow for further joint conferencing of the planning experts to explore potential amendments to the façade design and building form to address the concerns of the Council [refer par 3(1)].

26. Following the conference a further joint report of the planning experts was tendered (Exhibit 7). The key conclusions of the further joint report can be summarised as follows:

• That the amended plans require an amended cl 4.6 variation request to be tabled. Note this was tabled with the Court as Exhibit L and is discussed below.

• That subject to amendments being made to the design to make the lift overrun less prominent, the amended plans would result in an acceptable streetscape presentation;

• That subject to amendments to the landscape design as detailed below that council’s contention in relation to the appropriateness of setbacks is resolved.

The changes to the landscape plan are described as follows:

“i. At least 2 trees capable of attaining a mature height of between 5-6m in the front setback, with one adjacent to the south west boundary and one adjacent to the driveway. This will be possible with the relocation of the pedestrian path … and the amended basement design which increases the deep soil provision at the front of the site.

ii The pyrus species being replaced by an equal number of native species capable of attaining a mature height between 5-6m (or one less if the existing tree in the corner of the site can be retained)

…

i The pedestrian entry forward of the bend in the path towards the street frontage can be relocated to adjoin the balcony of Unit G03 so that a wider deep soil landscaped area can be provided adjoining the boundary;

ii feature planting/s capable of attaining a mature height between 3-4m will replace the 3 x cycas species adjacent to Unit G03;

iii the pedestrian pathway adjacent to the bedroom to Unit G01, stairs and foyer be reduced in width to allow a hedge capable of attaining a height of 2m at maturity to be provided adjoining the boundary;

iv the planter boxes adjacent to bedroom 1 of Unit G01, the lift and bedroom 2 of Unit G03 be provided two trees that would attain a height of 5-6m at maturity.”

(Exhibit 7).

• The tree located in northern corner of the site should be retained if feasible and if it is determined to be of an appropriate species, as it provides significant amenity to the subject and adjoining site. If the tree cannot be retained it should be replaced by a suitable native species of similar mature height.

• That subject to the simplification of the proposed materials and colour selection for the external finishes the Council’s contentions in relation to the developments bulk, scale and character would be satisfactorily addressed.

• That the previous concerns raised in relation to the impact of the proposal on the solar access of adjoining properties can be resolved by agreed minor changes to Apartment 201.

• That to ensure an adequate level of privacy the following should be noted on the architectural plans:

“i The windows to the side elevation of Unit 202 will be provided with either highlight windows or screened to prevent overlooking;

ii The side elevation of the rear balconies to Unit 101/ 102/ 201 will be screened or provided with obscure glazing to a height of 1.5m;

iii The side elevations of the balcony to Unit 202 will be provided with obscure glazing to a height of 1.5m.”

(Exhibit 7).

Stormwater

27. The Council maintains that the applicants stormwater design requires amendment to:

1. ensure that the onsite detention has an invert level equal to or higher than Council’s stormwater surface level. Council argues this is to ensure that the in the event of a blockage that back waters do not enter the property;

2. ensure the achievement of a 500mm freeboard from the stormwater overflow to the floor level of the habitable spaces; and

3. ensure that the stormwater is able to move from the rear of the site to the street by gravity.

28. Through further joint conferencing of the experts changes were made to the stormwater design of the proposal. The experts are agreed that the amended stormwater design is acceptable, subject to amended engineering plans being prepared prior to consent. This was the subject of the directions detailed at paragraph 30.

29. Ms McCulloch, for the Council, confirmed that the delegation had not been able to be obtained to enter into an agreement in the proceedings based on the above position of the experts. In submissions Ms McCulloch however acknowledged that the agreed evidence of the planners is that the contentions are resolved by the amendments detailed in their further report.

Directions

30. At the conclusion of the hearing the following directions were made:

“The Court Orders that:

1. Applicant to provide the Respondent updated BASIX certificate and storm water engineering plans to reflect the agreement of the experts.

2. Applicant is to provide an arborist report detailing the condition and likelihood of retention of the existing tree in the north-east corner of the site.

3. The information detailed in (1) and (2) are to be provided to the Respondent and the Court by 17 November 2017.

4. The parties are to file and serve updated conditions by 20 November 2017.

5 Judgment is reserved.”

31. Consistent with the directions amended stormwater information and updated conditions were filed with the Court. I have read and considered those reports as part of the finalisation of the assessment of the application.

Consideration and Findings

Clause 4.6 Variation request

32. Compliance with the development standards for building height, or in the alternate, a finding that the provisions of cl 4.6 of LEP 2012 are met is a pre-requisite to the grant of consent.

33. The parties are agreed that the final amended plans before the Court breach the maximum building height standard of 8.5m for the site in LEP 2012. By reference to Exhibit L the variation sought is as follows:

“The proposed maximum building height is 9.47m (RL 47.76) for the roof ridge over the front portion of the building; 9.1 (RL 47.39) for the lift overrun and 8.65m (RL 46.94 for the rear parapet.”

34. The parties’ experts have provided evidence in relation to the variation to the building height standard. I have reviewed that evidenced and importantly the updated written objection (Exhibit L). I note that in the supplementary joint report of the town planners they have reached agreement that the further amended plans (incorporating the changes sought to the lift overrun) results in the proposal having a suitable streetscape presentation.

35. Clause 4.6 is in the following form:

“4.6 Exceptions to development standards

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

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

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

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

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

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

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

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

(a) the consent authority is satisfied that:

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

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

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

(5) In deciding whether to grant concurrence, the 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 Secretary before granting concurrence.

…”

36. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Preston CJ outlines that Commissioners in exercising the functions of the consent authority on appeal have power to grant consent to developments that contravene the building height standard, or the FSR standard (cl 4.6(2)). However they cannot grant such a development consent unless they:

1. Are satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)).

2. Are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)).

3. Have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with they are satisfied that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)).

4. Have considered a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

I have applied these tests to the current application in the following.

37. Having regard to the evidence and in particular the written objection prepared I am satisfied these tests have been met. This is particularly the case because the agreed position of the experts is that the development standard can be varied with no detrimental amenity or streetscape impact. I note their agreement that the solar access to the development is acceptable and that the proposal does not unacceptably impact on solar gain of adjoining properties. On this evidence the development proposed is consistent with the objectives of cl. 4.3 Building Height in LEP 2012 which centre on compatibility with character (cl. 4.3(a)); impact on adjoining properties (cl. 4.3(b)); internal amenity (cl. 4.3(b)); and streetscape presentation (cl. 4.3(c)).

38. There is no contention between the parties that the development is inconsistent with the zone objectives. I accept the evidence of Mr Brewer within the variation request that the zone objectives are met. I am satisfied that the development is consistent with an objective to provide for the housing needs of the community and to provide a variety of housing types within a high density environment.

39. The variation request prepared by Mr Michael Brewer identifies reasoning in support of the variation sought which I have summarised below:

• the proposed height non-compliance allows for the provision of a pitched roof form which assists in achieving a built form that is compatible with the character of the surrounding area and the desired future character;

• providing a development with a pitched roof form will result in the gutter line being lower than that for a flat roof. This results in less overshadowing to the adjoining neighbours;

• the proposal will not disrupt any views, nor will it significantly adversely impact on the amenity of adjoining properties or private open spaces;

• there is a reasonable visual relationship with adjoining development as the top level has been set back from the front building line by 6.4m and is located within the roof to give the appearance of a two storey form to Fletcher Street;

• upper floor windows have been oriented away from the side boundaries or provided as “highlight” windows to mitigate any privacy impacts;

• the variation to the building height in part arises from the bonus to floor space provided through SEPP ARH (refer paragraph [12]) and that additional yield has been provided within the site by additional height which has no detrimental impacts; and

• the proposed development has the ability to provide affordable housing in a prime location proximate to public transport.

40. I am satisfied that the written request and the evidence demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

41. I am satisfied that the written request and the evidence of the planning experts demonstrate that there are sufficient environmental planning grounds to justify the variation. I accept the evidence of Mr Brewer that “the variation will result in an improved environmental outcome of maximising development pursuant to SEPP ARH and in the R4 High Density Residential zone on an infill site that is well located to accommodate that development” (Exhibit L). I can comfortably conclude that an alternative approach to the site with larger floor plates at each level within the compliant building height plane, or with a flat roof, would be an inferior response to the site that would likely have more significant adverse impacts.

42. There are no matters of significance for State or regional environmental planning and based on the evidence no public benefit in maintaining the standard in the circumstances of the case.

43. For these reasons I am satisfied that the provisions of cl 4.6 of LEP 2012 are met.

Merit Matters

44. Having found this particular precondition to consent is met, it is necessary to consider those matters prescribed in s 79C of the Environmental Planning and Assessment Act 1979 (‘the Act’).

45. With the benefit of the site view, the evidence and a detailed review of the plans I am satisfied that the development is consistent with the relevant planning instruments, development control plans and other documents listed in s 79C(1)(a).

46. I have considered the question of whether the design of the development is compatible with the character of the area (cl 16A SEPP ARH) and I am satisfied on the basis of the evidence and the experts agreement regarding the acceptability of the streetscape presentation (at paragraph [34]) that it is.

47. I accept the submission of the applicant that compliance with the setback controls would result in a development that was uncharacteristic in the locality. I note the agreement of the experts (at paragraph [24(1)]) that with the additional planting in the front setback they are satisfied that the variation is appropriate.

48. In response to the directions given (refer paragraph [29]) an amended landscape plan was filed with the Court on 20 November 2017. I have reviewed this plan and it incorporates the additional planting in the front setback as agreed by the planning experts.

49. In relation to those matters raised by objectors and the public interest in general I have addressed the height exceedance in the preceding. In relation to the preference of an alternative development type I note that the proposed use of the site as a boarding house is a permitted use within the zone and has therefore been identified as generally suited for that use. Weight must be given to that zoning in the resolution of a dispute as to whether development is appropriate (BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237;[2004] NSWLEC 399 at [117]-[118]).

50. Whilst I note concerns in relation to the availability of parking and the traffic volume in Fletcher Street, I accept that the development provides the spaces required by the planning controls. I accept that the site is in close proximity to public transport options.

51. I am satisfied on the evidence before me that the relevant planning concerns raised by the objectors have been addressed by the plans presently before the Court and the proposed conditions of consent.

52. I note that the Council has incorporated the amended Stormwater documentation in the draft conditions filed with the Court without amendment.

Conditions

53. During the onsite view at the commencement of the hearing the viability of the retention of an existing Acmena Smithii (Lillypilli) was raised. The tree was not nominated by the applicant for retention or raised by the Council in the Statement of Facts and Contentions. It was acknowledged by the planning experts that the existing tree provided amenity to the site and the adjoining properties.

54. Consistent with the directions made by the Court an Aboricultural Assessment Report was provided by the applicant. The report details that the arborist undertook an inspection of the tree and an evaluation of its general growing environment. The tree was assessed as being of medium significance. The recommendations of the report are as follows:

“The tree has been considered for retention but if retained would be impacted by service placement and crown modification to accommodate the proposed adjoining built structure. Also, if retained the tree would only prove problematic as future growth increments would continue to conflict with surrounding structures and is subsequently recommended for removal.

(Aboricultural assessment report: 27 Fletcher Street Campsie

Tree and Landscape Consultants 7/11/2017)”

55. Further the aboricultural assessment report concludes that the three “Cheese trees” incorporated in the landscape plan to replace the Lillypilli would, at maturity, “provide 192 square metres of canopy cover to compensate for the removal of the Lillypilli which currently provides 49 square metres of canopy cover.”

56. In response to the directions the Council has filed a memorandum from a landscape architect employment by the Council. The conclusion of the Council’s assessment is that the Lilly Pilli should be retained as part of the development. Their assessment is that given its size and health this tree would provide significant amenity to the development with the provision of excellent privacy and shade. The memorandum concludes:

“It is my opinion that this tree is a worthy specimen for retention given its location on the site, its health and the significant amenity it would provide to the development in both the short and long term.”

(Memorandum from Nina Kierath, City of Canterbury Bankstown)

57. The Council has included conditions in the draft consent to implement their recommendation that the Lilli Pilly be retained. The applicant contests the imposition of these conditions on the basis of the recommendation of their arborist report.

Findings

58. A review of amended stormwater plan confirms the applicant proposes the placement of stormwater inlet pits within the zone recommended by the Council (at draft condition 2 (ii)) to be managed as a tree protection zone with the existing ground lines maintained.

59. In reviewing the aboricultural assessment report it is clear that this is a factor in the arborist concluding that the existing tree would be impacted by services and recommending the Lilly Pilly for removal.

60. In considering the expert evidence and their different opinions, I am satisfied that the Lilly Pilly can be removed. My reasoning is as follows:

1. the decision on whether the Lilly Pilly can be removed is a question of balance and in this case, the weight of evidence supports its removal. In particular I have placed weight on the applicants arboriculture report confirming that the site was attended and the tree viewed;

2. in the delineation of the issues in contention between the parties the respondent did not identify the retention of the trees as a matter of dispute, notwithstanding that there is the opportunity to do so; and

3. I am satisfied that the replacement trees will, over time, replicate the amenity benefits of the existing species and I accept the applicants aboricultural evidence that they will be more appropriately located for long term health.

61. In light of the preceeding the Council’s requested conditions 2(c)(i) to (vi) and (d) are not supported.

Costs

62. Section 97B of the Act relevantly provides:

“97B Costs payable if amended development application filed

(1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment).

(2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application.”

63. At the commencement of the proceedings leave was granted for the applicant to rely on an amended set of plans that sought to address the issues and contentions raised by the Council and through the expert conferencing process. A further set of amended plans were tabled at the commencement of the second day of the hearing in response to the addendum to the joint report of the planners. In the granting of leave for both sets of amendments the determination of costs payable was reserved.

64. In Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 Senior Commissioner Moore (as his Honour then was) pointed out that for s 97B to be of effect, two steps are necessary:

“Firstly, that the Court allows the applicant to file an amended development application.

Secondly, that the amended development application not constitute 'a minor amendment'.”

65. The first test is met. In answering the second test the decision of Pepper J in Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 at [42] articulates the principles that may assist in determining whether amendments are minor, as follows:

“(a) first, the question of what is ‘minor’ is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]);

(b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]);

(c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]);

(d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]);

(e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]);

(f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor;

(g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and

(h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]).”

66. The first set of amended plans incorporated a number of design changes that are detailed at paragraph [3].

67. The further set of amended plans incorporated a number of design changes that are detailed at paragraph [4].

68. When considering whether the amendments in the first set of amended plans are minor in the context of the development as a whole, I am satisfied they are not minor amendments. It is evident from the proceedings that the further expert evidence was required as a result of amending the development application.

69. However on the basis of a review of the amendments in the context of the development I am satisfied that the amendments proposed by the applicant in the further set of amended plans are minor and are consistent with what is stated in Marinkovic v Rockdale City Council [2007] NSWLEC 71 at [22] as being part of the Class 1 appeal process, as such I propose no order as to costs in relation to these plans.

Conclusion

70. I have reviewed the evidence provided by experts to support the resolution of the contentions now agreed. I am satisfied that the experts have appropriately considered the issues raised by the contentions, the public, and the appropriate planning controls, and I accept their conclusions.

71. I have reviewed the amended documentation provided by the parties in response to the directions detailed at paragraph [29] and I find that they implement the agreement reached between the experts and the parties during the proceedings.

72. I am satisfied that the proposal, in its amended form provides a satisfactory streetscape presentation, will address the issues raised by the submissions and provides for the satisfactory conveyance of water from the site. At the completion of my assessment under s 79C of the Act I am satisfied that the application warrants approval.

Orders:

73. The Court orders that:

1. The applicant is granted leave to rely on amended plans.

2. The applicant is to pay the Respondents costs thrown away as a result of first set of amended plans pursuant to s 97B as may be agreed or assessed.

3. The objection pursuant to cl 4.6 of the Canterbury Local Environmental Plan 2012 is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application No. DA/186/2016 for demolition of existing structures and construction of a three storey residential flat building with basement car parking at Lot 89, DP 417, 27 Fletcher Street, Campsie, subject to conditions in Annexure A.

6. The Exhibits are returned with the exception of Exhibits 1, J, L and the amended documents filed with the Court on November 20 2017.

…………….

D M Dickson

Commissioner of the Court

Annexure A (C) (374 KB, pdf)

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Amendments

28 November 2017 - Formatting amendment.

Decision last updated: 28 November 2017