Land and Environment Court New South Wales Medium Neutral Citation: Britely Property Pty Ltd v Randwick City Council (No 2) [2020] NSWLEC 1389 Hearing dates: 29, 30 June, 1 July 2020, written submissions 22 July 2020 Date of orders: 25 August 2020 Decision date: 25 August 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The orders of the Court are: (1) The objection pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 (LEP 2012) to vary the Floor Space Ratio standard at cl 4.4 of LEP 2012 is not sustained. (2) The objection pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 to vary the motorcycle parking standard at cl 30(1)(h) of State Environmental Planning Policy (Affordable Rental Housing) 2009 is not sustained. (3) The appeal is dismissed. (4) Development application DA 272/2019 for demolition and construction of a boarding house at 22-28 Gardeners Road, Kingsford is refused. (5) The exhibits are returned with the exception of exhibits 1, B, D and E. Catchwords: DEVELOPMENT APPLICATION – Boarding house – student accommodation – amended plans – application of the floor space ratio definition – variation to floor space standard – variation to maximum height standard – variation to the motorcycle parking standard – whether environmental planning grounds are sufficient to justify the variation – appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Seniors Living) 2004 Cases Cited: 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 Abdul-Rahman v Strathfield Council [2014] NSWLEC 1237 Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 Boyce v Inner West Council [2019] NSWLEC 1521 Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1289 Connoisseur Investments Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1181 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 GHD Danks Pty Ltd and CR Danks Pty Ltd v Council of the City of Sydney [2015] NSWLEC1521 Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 8 Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 Legacy Property Pty Ltd v Waverley Council [2014] NSWLEC 1150 Maham Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1168 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 Parker Logan Property Pty Ltd v Inner West Council [2018] NSWLEC 1339 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGERA 21 Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106 Valen Properties Pty Ltd ATF Valen Properties Trust v Hurstville City Council [2015] NSWLEC 1045 Wehbe v Pittwater Council (2007) 156 LGERA 446 Zhang and Anor v Council of the City of Ryde [2016] NSWLEC 1179 Texts Cited: Macquarie Dictionary Randwick Comprehensive Development Control Plan 2013 Category: Principal judgment Parties: Britely Property Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: C McEwen SC (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/261580 Publication restriction: No Judgment 1. COMMISSIONER: The Applicant, Britely Properties, appeals pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA/272/2019 by Randwick City Council. As amended, the development application seeks consent for a boarding house, for use solely as student accommodation. The development comprises a four-storey building fronting Southern Cross Close and an eight-storey building fronting Gardeners Road. The development will provide 121 accommodation rooms with a maximum occupancy of 136 persons. The development is proposed at 22-28 Gardeners Road, Kingsford. 2. The appeal was subject to conciliation on 22 November 2019, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated, and the proceedings dealt with as a hearing. 3. Consistent with the Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) announced on 23 March 2020 and published on the Court's website, the proceedings were listed for a hearing via MS Teams pursuant to s 34C of the LEC Act. Because of the Court's policy, I did not visit the site, however documents and photographs of the site and its context were admitted into evidence. 4. The Applicant was granted leave by the Court to amend their development application on 22 May 2020. These amended plans were notified by the Respondent prior to the commencement of the hearing. Leave for the Applicant to further amend their application in response to the joint report of the town planning experts was unopposed and granted by the Court at the commencement of the hearing. Issues 1. The Respondent maintains that the application should be refused by the Court on the following grounds: 1. That the proposed development relies on a variation to the floor space ratio (FSR) standard and that the Court would not be satisfied on the evidence that the Applicant's written request under cl 4.6 of Randwick Local Environmental Plan 2012 (LEP 2012) for a variation to the standard should be upheld, 2. That insufficient car parking has been provided for the development, 3. That the Court would not be satisfied on the evidence that the Applicant's written request under cl 4.6 of LEP 2012 for a variation to the motorcycle parking standard at cl 30(1)(h) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) should be upheld, 4. That the Applicant's written request under LEP 2012 for a variation to the maximum height standard in LEP 2012 is not well founded, 5. That the proposed development is incompatible with the desired future character of the locality, the consideration of which is required under cl 30A of SEPP ARH, 6. The width of some of the proposed studio and twin studio rooms are inadequate and not capable of ensuring adequate amenity for future occupants, 7. That the area of indoor communal living is inadequate and has poor amenity in terms of solar access, 8. That the Court would not be satisfied that the design of the development in terms of waste management, or the proposed arrangement for waste collection are acceptable. Development for which consent is sought 1. The development application (as amended) seeks consent for the demolition of existing structures, site amalgamation and construction of boarding house development for use as student accommodation. The development is proposed in two buildings: a four-storey building fronting Southern Cross Close and an eight-storey building fronting Gardeners Road. The development will comprise 121 rooms (inclusive of one managers room) with a total of 136 beds. Communal spaces are proposed at ground floor, the first floor and a roof top area. The ground floor also proposes a commercial premise (café) at grade parking for 8 vehicles (5 car-share spaces, a manager's space, and accessible space and a delivery space), and parking spaces for 13 motorcycles. 2. In the joint report of the planning experts, the town planners propose a reduction of 0.6m to the lift overrun of the eight-storey building fronting Gardeners Road. This would reduce the maximum height of the development. This amendment is agreed by the Applicant and is proposed to be affected by condition of consent. 3. In the joint report of the waste and traffic experts, they propose a reallocation of one of the five car-share spaces for use by the café staff. This amendment is agreed by the Applicant and proposed to be affected by condition of consent. The site and its context 1. The subject site is known as 22-28 Gardeners Road, Kingsford and encompasses the following three (3) allotments: 1. Lot 1 in Deposited Plan 210743 (22 Gardeners Road); 2. Lot 2 in Deposited Plan 210743 (24-26 Gardeners Road); and 3. Lot 3 in Deposited Plan 210743 (28 Gardeners Road). 1. Each of the allotments is currently occupied by a two-storey shop-top housing development which gains vehicular access from the rear off Southern Cross Close. 2. The subject site is situated on the northern side of Gardeners Road, in the Kingsford Town Centre. The University of New South Wales (UNSW) is approximately 800m to the North of the subject site. A passenger stop on the Light Rail is located within 150m of the site which provides access to UNSW, Central Station and the Sydney CBD. A bus stop is located in the frontage of the subject site. 3. The surrounding development comprises a mixture of commercial premises and mixed-use developments, including shop top housing, situated within Zone B2 Local Centre pursuant to the provisions of LEP 2012. 4. A mixture of low density and medium density residential development exists to the north and north-west of the subject site within the adjoining Zone R3 Medium Density Residential. Planning framework 1. The proposed development is integrated development as it proposes works within 40m of a water course: s 4.46 of the EPA Act. Concurrence and General Terms of Approval were provided from Water NSW on 4 October 2019. 2. Pursuant to cl 101 of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) the proposed development requires concurrence from NSW Roads and Maritime as it fronts a classified road. Concurrence and General Terms of Approval were provided from Transport for NSW on 27 June 2019 and NSW Roads and Maritime on 5 July 2019. The requirements of these agencies are incorporated in the proposed conditions of consent (Exhibit 7). I am satisfied that the precondition at cl 101(2) of SEPP Infrastructure is met as the subject development proposes all access from Southern Cross Close, and thus will have no impact on the classified road. 3. Clause 7(1) of State Environmental Planning Policy No 55—Remediation of Land, requires the Court to consider whether the subject site is contaminated. A Detailed Site Investigation of the land has been prepared by EI Australia, dated 7 November 2019. The report concludes that the site is suitable for the intended mixed commercial/residential use (Exhibit B). 4. The development application is made pursuant to SEPP ARH. As the application proposes a boarding house, Division 3 contains the relevant provisions. The division applies to the site as the site is zoned B2 Local Centre under LEP 2012 (cl 26(f) of SEPP ARH). 5. The subject site is on land in which residential flat buildings are permitted and does not contain a heritage item. Pursuant to cl 29(1)(c)(ii) of SEPP ARH, the site can access an additional 20% of the FSR provided under LEP 2012 as the base FSR exceeds 2.5:1. 6. Pursuant to cl 29(1) of SEPP ARH, a consent authority must not refuse consent to development on the grounds of density or scale if the development is compliant with the FSR standard. 7. Clause 29(2) of SEPP ARH includes the following 'do not refuse' standards: (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area)— (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager—one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if— (i) in the case of development carried out by or on behalf of a social housing provider in an accessible area—at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area—at least 0.4 parking spaces are provided for each boarding room, and (iia) in the case of development not carried out by or on behalf of a social housing provider—at least 0.5 parking spaces are provided for each boarding room, and (iii) in the case of any development—not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least— (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. 1. Pursuant to cl 30(1) of SEPP ARH, the consent authority not consent to boarding house development unless it is satisfied of each of the following: (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager, (f) (Repealed) (g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. 1. The Applicant seeks to vary the development standard at cl 30(1)(h) of SEPP ARH in relation to the provision of motorcycle parking spaces. 2. Prior to the grant of consent the consent authority is required to take into consideration whether the design of the development is compatible with the character of the local area: cl 30A of SEPP ARH. 3. The subject site is zoned B2 Local Centre pursuant to the provisions of LEP 2012. Development for the purposes of a boarding house and commercial premises (café) are permissible with consent. 4. The objectives of the B2 Local Centre zone, to which regard must be had, are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To enable residential development that is well-integrated with, and supports the primary business function of, the zone. • To facilitate a high standard of urban design and pedestrian amenity that contributes to achieving a sense of place for the local community. • To minimise the impact of development and protect the amenity of residents in the zone and in the adjoining and nearby residential zones. • To facilitate a safe public domain. 1. The height of buildings development standard for the subject site is 24m (cl 4.3 of LEP 2012). The proposal has a maximum height at the lift overrun of 26.3m, an exceedance of 2.3m. The proposed development exceeds the maximum height standard and relies on variation request pursuant to cl 4.6 of LEP 2012. 2. The FSR standard for the subject site is 3:1: cl 4.4 of LEP 2012. In conjunction with the provision of cl 29(1)(c)(ii) of SEPP ARH the maximum FSR development standard for the site is 3.6:1. 3. The parties are in contest as to whether the proposed development is compliant with the maximum FSR. The difference between them centres on the application of the definition of gross floor area (GFA) in LEP 2012. That definition is: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes— (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes— (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement— (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above. 1. Clause 6.2 of LEP 2012 is directed to earthworks. Subclause (3) requires that prior to the grant of consent for earthworks (or for development involving ancillary earthworks) that the consent authority give consideration to the listed matters. In undertaking the assessment of the application, I have considered the factors listed at cl 6.2(3) of LEP 2012. 2. Clause 6.11 of LEP 2012 is directed to Design Excellence. Subclause (3) states that consent must not be granted to development to which the clause applies unless the consent authority is satisfied that the proposed development exhibits design excellence. In considering whether the development exhibits design excellence regard must be had to the following factors: (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) how the proposed development responds to the environmental and built characteristics of the site and whether it achieves an acceptable relationship with other buildings on the same site and on neighbouring sites, (d) whether the building meets sustainable design principles in terms of sunlight, natural ventilation, wind, reflectivity, visual and acoustic privacy, safety and security and resource, energy and water efficiency, (e) whether the proposed development detrimentally impacts on view corridors and landmarks. 1. The provisions of Randwick Comprehensive Development Control Plan 2013 (DCP 2013) applies to the development. The following provisions of DCP 2013 are relevant to the issues in dispute between the parties: "B7: Transport, Traffic, Parking and Access 1. Introduction … 1.1 Objectives • To promote sustainable transport options for development, particularly along transport corridors, in commercial centres and strategic/key sites. • To manage the provision of car parking within the broader transport network. • To support integrated transport and land use options which can demonstrate shared and effective car parking provision with car share facilities, motorbikes/scooters, bikes and links to public transport. • To ensure car parking facilities, service and delivery areas and access are designed to enhance streetscape character and protect pedestrian amenity and safety. … 2.2: Car Share Objective • To encourage car share spaces in developments with high public transport access. Controls i) Car share spaces are to be provided in residential and/or commercial development where public transport accessibility is high and/or where a Transport Assessment Study is required. ii) Locate the car share space/s in a convenient, accessible, secure area. iii) Ensure good visibility, 24 hour access and close proximity to the street. If in a basement it must be near exit/entry areas and not difficult to find or be out of sight. iv) Identify (sign and road/pavement markings) the car share space for use only by car share vehicles in accordance with RMS standards. v) The establishment and operation of a car share scheme must occur soon after completion or occupation of the development. vi) Parking spaces for car share schemes located on private property are to be retained as common property by the Owners Corporation of the site. … 3.2 Vehicle Parking Rates Objective • To ensure that an appropriate level of off-street vehicle parking is provided. Controls i) Development must comply with the vehicle parking rates as detailed in Table 1 Vehicle Parking Rates. Any excess provisions over and above the parking rates will be included in GFA calculations. ii) Parking for service/delivery vehicles, bicycles and people with a disability need to be considered for the relevant land use and in accordance with this DCP. iii) Where a parking rate has NOT been specified in the table, the RMS Guide to Traffic Generating Developments shall be used to calculate the parking requirements for the proposed development and/or a Transport Assessment Study may be used to determine the parking, subject to approval by Council. iv) Minimise the use of mechanical parking devices (car stackers or turntables) particularly on difficult (eg constrained access) sites and where queuing may result or safety is jeopardised. v) For mixed use development the allocation of car spaces among the uses is to be indicated on the DA plans. Table 1 Vehicle Parking Rates … 3.3 Exceptions to the Parking Rates i) Any variation to the parking rates must address the following issues (as relevant to the particular development): (a) Type and scale of the development and its potential impact on local traffic and parking conditions. (b) Survey of parking provision in comparable recent development. (c) Existing parking facilities already provided prior to further development. (d) Site and building constraints. (e) Heritage and urban design considerations including significant streetscape elements such as sandstone retaining walls, significant mature trees etc (f) On street and public parking in the area, as well as proximity and access to public transport. (g) Location of local services, employment, retail and recreational facilities. (h) Safety of vehicles, pedestrians and cyclists. (i) Provision of any integrated, sustainable transport options on site. C4: Boarding Houses 1. Introduction … The following controls supplement the AHSEPP provisions with additional guidelines and operational requirements to ensure quality yet affordable building design, effective on-going management and suitable living environment for both occupants and neighbours. This section of the DCP should be read in conjunction with: • the AHSEPP; • Part A - Introduction and Part B - General Controls of the DCP; and • Other sections of the DCP for specific development types, sites or locations, if relevant to the application. … 2. Building Design Objectives To incorporate suitable design features to: • ensure boarding rooms and communal spaces are appropriately sized, located and equipped with suitable facilities; • reduce the opportunity for crime and enhance the feeling of safety for residents; and • protect the acoustic and visual privacy and living amenity for both boarding house residents and neighbours. 2.3 Indoor Communal living areas: i) Provide with a minimum dimension of 3 metres and a minimum total area of 20 square metres or 1.2 square metres/resident, whichever is greater; and ii) Orientate to maximise solar access and have a northerly aspect where possible. D2: Kingsford Centre 3. Carparking and Access Objective • To ensure car parking, loading and access facilities do not visually dominate the street or the building on the site. Controls i) On-site car parking must be provided underground or within the building. ii) Any above-ground car parking must not be visible from Anzac Parade and/or Gardeners Road. iii) Car park ventilation grilles must not be provided on main street elevations. iv) Where a site has access to a rear lane, the loading and unloading facilities must be accessed from the laneway." 1. The subject site is within the bounds of a draft planning proposal to increase the building height and FSR controls and introduce new local provisions for the Kensington and Kingsford Town Centres under the draft planning proposal through an amendment to LEP 2012. The final draft planning proposal was submitted by the Respondent to the NSW Department of Planning, Industry and Environment in January 2020 to be made as an amendment to LEP 2012. The planning proposal applies to the Kensington and Kingsford town centres. It proposes the following amendments to the relevant development standards that would apply to the subject site: * Increases the FSR development standard to 4:1. * Increases the maximum height standard to 31m. 1. In resolving to refer the draft planning proposal to the NSW Department of Planning Randwick Council sought to include a definition of 'student housing' in LEP 2012 to differentiate it from the existing boarding house definition (Exhibit 4). The wording of such a proposed definition is not before the Court. Public notification 1. The development application was notified by the Respondent for 30 days in July 2019. One submission was received. The submission raised concern that the proposed development may cause impact to the Indonesian Presbyterian Church at 94 Houston Road, Kingsford during construction. The submitter requests the imposition of conditions requiring the production of a dilapidation report for properties adjoining the subject site prior to the issue of any future Construction Certificate. 2. The proposed conditions of consent (Exhibit J) include the following condition, satisfying the concerns of the objector: "61. A dilapidation report (incorporating photographs of relevant buildings) must be obtained from a professional engineer, detailing the current condition and status of all of the buildings and structures located upon all of the properties adjoining the subject site and any other property or public land which may be affected by the works, to the satisfaction of the Principal Certifying Authority. The dilapidation report must be submitted to the Council, the Principal Certifying Authority and the owners of the adjoining/nearby properties encompassed in the report prior to commencing any site works (including demolition work, excavation work or building work)." (Exhibit J) 1. The amended plans, granted leave by the Court on 22 May 2020, were publicly exhibited. No submissions were received. Expert evidence 1. The Court was assisted by town planning experts, Ms Kate Bartlett for the Applicant and Ms Angela Manahan for the Respondent. Their joint town planning report was tendered as Exhibit 5 in the proceedings. In addition to their joint report the planning experts were called for cross examination. 2. The Court was assisted by traffic engineering experts, Mr Ken Hollyoak for the Applicant and Mr Craig McLaren for the Respondent. These experts conferenced jointly with the waste management experts: Mr Jordan Parker for the Applicant and Mr Jason Rider for the Respondent. The joint engineering and waste management report was tendered as Exhibit 6 in the proceedings. In addition to their joint report the experts were called for cross examination. Boarding house, student accommodation 1. The Applicant's written submissions summarise the development for which consent is sought as follows: "The development application seeks consent for a boarding house development for use as student accommodation only. Two buildings are proposed, comprising a four storey building fronting Southern Cross Close (northern building) and an eight storey building (southern building) fronting Gardners Road [emphasis added]. The boarding house will contain 121 accommodation rooms with a maximum occupancy of 136 persons. The 121 room comprise 105 single rooms, 15 twin rooms and one manager's room. It is proposed that upon the ground floor provision will be made for the parking of eight cars and 14 motor cycles … At the basement level, provision is made for 33 bicycle storage cages." (Applicant's written submissions, 26 June 2020, p 2) 1. The Applicant submits that the use of the boarding house will be limited to student housing, a restriction enforced by the imposition of the agreed following condition: "Restriction on Student Accommodation 132. Prior to the issue of any occupation certificate or occupation of the development (whichever is earlier) a restrictive covenant shall be registered on the title of the subject land which confirms that the accommodation of the portion of the development may be used for student accommodation only, and restricting any change of the development from student accommodation. All costs of the preparation and registration of all associated documentation are to be borne by the Applicant." (Exhibit J) 1. Mr McEwen submits that the use of the boarding house for student housing, as opposed to use by a broader range of lodgers, reduces the car parking demand due to the subject site's proximity to the UNSW (Applicant's written submissions, 26 June 2020, p 10). 2. In the alternative, Mr Seton argues that the development for which the application seeks consent is a boarding house, a use that is defined in SEPP ARH and LEP 2012 as meaning a building that: (a) is wholly or partly let in lodgings, and (b) provides lodgers with a principal place of residence for 3 months or more, and (c) may have shared facilities, such as a communal living room, bathroom, kitchen or laundry, and (d) has rooms, some or all of which may have private kitchen and bathroom facilities, that accommodate one or more lodgers, but does not include backpackers' accommodation, a group home, hotel or motel accommodation, seniors housing or a serviced apartment. 1. Mr Seton disagrees with Mr McEwen's submission that the development application should be assessed as student accommodation. His reasoning is detailed in the following: * The term 'student' is not defined for the purposes of the application. * It was acknowledged by Mr Hollyoak during the oral evidence of the traffic experts that the 'students' to be accommodated in the development: - May be enrolled full time or part time in a TAFE or university course. - May be international or Australian residents. - May be working. * The distinction between students and other boarders is not supported by the existing planning regime or controls that apply to boarding house development in Randwick. * That one of the aims of SEPP ARH is: 'to provide a consistent planning regime for the provision of affordable rental housing', to treat boarding houses differently on the basis of occupants (in particular students) is inconsistent with the aim to provide a consistent planning regime. Further, SEPP ARH does not sub-categorise boarding houses on the basis of the type of occupants. * LEP 2012 also does not sub-categorise boarding houses on the basis of the type of occupants. Findings 1. SEPP ARH states at cl 4(2): "A word or expression used in this Policy (other than Schedule 1 or 2) has the same meaning as it has in the standard instrument (as in force immediately before the commencement of the Standard Instrument (Local Environmental Plans) Amendment Order 2011 (the Standard Instrument) unless it is otherwise defined in this Policy". 2. The Standard Instrument defines a boarding house as: boarding house means a building that: (a) is wholly or partly let in lodgings, and (b) provides lodgers with a principal place of residence for3 months or more, and (c) may have shared facilities, such as a communal living room, bathroom, kitchen or laundry, and (d) has rooms, some or all of which may have private kitchen and bathroom facilities, that accommodate one or more lodgers, but does not include backpackers' accommodation, a group home, hotel or motel accommodation, seniors housing or a serviced apartment. Note. Boarding houses are a type of residential accommodation—see the definition of that term in this Dictionary. 1. The same definition of boarding house is included in LEP 2012. Neither of the three instruments include a definition of 'student housing'. 2. I accept the submissions of Mr Seton that the development for which the application seeks consent is a boarding house, a use that is defined in SEPP ARH and LEP 2012. The proposed covenant, restricting the occupation of the premises to students, is a matter which may be of relevance to the potential impacts arising from the development, but I am satisfied it is not the purpose for which the applicant seeks consent. I accept and adopt the reasoning of Mr Seton at paragraph [42]-[43]. What is the gross floor area of the proposed development? 1. The GFA under LEP 2012 for a building on the subject is 3.0:1. Applying the 20% bonus available pursuant to cl 29(1)(c)(ii) of SEPP ARH, development consent must not be refused if the development has an FSR of 3.6:1. Based on the site area, at 3.6:1, the relevant maximum GFA is 3024m². 2. The parties disagree whether the proposed development is compliant with the development standard of 3.6:1. The disagreement centres on two areas of the proposed development. They are: 1. The external undercover terrace (27.8m²); and 2. The bicycle storage area in the basement (51.69m²). 1. The total floor space in dispute is 79.49m², if that GFA is included in the building the total GFA would be 3,103.49m², with an FSR of 3.69:1. 2. Applying the LEP definition for FSR, refer paragraph [28], Ms Manahan argues that the external undercover terrace, forming the lobby off Southern Cross Close, is appropriately GFA. Her reasoning is as follows: 1. The lobby is roofed and enclosed by three walls, with only the northern side open. The northern side is enclosed by louvres 1.8m high. 2. Consistent with the judgments of the Court in Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 and Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1289, the louvred openings in the lobby space are insignificant in the context of the external walls. 3. Further, the subject lobby is not exposed to the elements. The wall further to the west which contains the lift (which the Applicant argued was the external wall) does not form the external wall of the building and does not provide protection from weather. 1. In the alternative, Ms Bartlett does not agree that the lobby off Southern Cross Close is GFA. It is her evidence that the lobby area is not fully enclosed, thus not meeting the definition in LEP 2012. 2. In relation to the second contested area it is Ms Manahan's assessment that the bicycle storage area in the basement area forms part of the GFA of the building. Her reasoning is as follows: 1. That the bicycle cages are not storage, but rather are to satisfy the requirement in SEPP ARH for bicycle parking. 2. That the GFA definition only excludes car parking, so an area allocated to bicycle parking must be counted as GFA. 1. In the alternative Ms Bartlett argues that the area in the basement for bicycle storage consists of storage cages and is thus excluded from GFA on the basis of subcl (i) of the definition. Further, she argues that "it would appear to be contrary to the SEPP to require car parking, motorbike and bicycle parking, yet require bicycle parking to be included in GFA and not motorcycle or car parking" (Exhibit 5). Findings 1. I accept and adopt the reasoning of Ms Manahan that the lobby off Southern Cross Close is GFA. I am not persuaded that the circumstances proposed by this development correlate to the specific facts and circumstances that applied in the decision of the Court in GHD Danks Pty Ltd and CR Danks Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1521 at [31] which allowed the exclusion of corridors from the GFA calculation in those proceedings. 2. In this development the lobby is wholly within the envelope of the building, covered by a roof slab and enclosed by walls (albeit one a louvred screen). These walls are greater than 1.4m high. I do not accept that the louvred screen is not a wall. Applying the ordinary meaning of the word 'wall' in the Macquarie Dictionary the proposed louvred screen is a structure that serves to enclose, divide, support and protect. "Wall 1. An upright work or structure of stone, brick or similar material, serving for enclosure, division, support, protection etc, as one of the upright enclosing sides of a building or a room, or a solid fence of masonry." (Macquarie Dictionary, p 1952) 1. I am satisfied the lobby is floor area of the building within external walls. The remaining exclusions within the definition of GFA in LEP 2012 do not apply to this space. 2. In regard to the contested bicycle parking areas I am satisfied that the floor area occupied by the bike cages does not form GFA as defined by LEP 2012. Consistent with the decision of the Court in Connoisseur Investments Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1181 at [81], and the wording of the definition itself, I am satisfied that only habitable spaces (or shops, auditoriums or cinemas and the like) in the basement contribute to GFA. Further, I am satisfied that the bike cages fall with the storage exclusion at (e)(i) of the definition forGFA extracted at paragraph [28]. 3. As a result, I find that the GFA of the development is 3,051.8m². This is derived by adding the 27.8m² (the lobby off Southern Cross Close) to the GFA calculation (3,024m²) provided by the Applicant at Exhibit B. 4. The GFA exceeds the development standard for floor space under cl 29(1)(c)(ii) of SEPP ARH of 3.6:1 [3051.8m²/828.3 = 3.68:1]. A request pursuant to cl 4.6 of LEP 2012 to vary height and FSR standard is necessary 1. The question of whether a written request pursuant to cl 4.6 of LEP 2012 is required to vary the height and FSR development standards in LEP 2012 was the subject of legal submissions. 2. Mr McEwen submits, on behalf of the Applicant, that a cl 4.6 written request is not necessary to overcome the breach of the height of buildings standard (cl 4.3 of LEP 2012) or the FSR development standard (cl 4.4 of LEP 2012). 3. Mr McEwen's argues the provisions of cll 4.3 and 4.4 of LEP 2012 are inconsistent with cl 29(4) of SEPP ARH. Relying on cl 8 of SEPP ARH Mr McEwen submits that to the extent of the inconsistency the provisions of SEPP ARH prevail. On this basis he concludes that the Court is able to consent to the development, notwithstanding the exceedance of the height and FSR standards in LEP 2012 without relying on a cl 4.6 request. His reasoning is extracted below: "20. With respect to height and FSR, the Applicant submits that no 4.6 objection is required with respect to cl 4.3 or 4.4 of RLEP 2012 because the SEPP overrides the LEP to the extent of any inconsistency between them (cl 8 SEPP). Clause 29(2) sets a must not refuse standard for building height for the site (24m). Clause 29(1)(c) sets a "must not refuse" standard for FSR (3.6:1). Clause 29(4) provides: 29(4) A consent authority may consent to development to which this Division applies, whether or not the development complies with the standards set out in sub-clause (1) or (2). 21. Clause 4.3 and cl 4.4 of the LEP prevent the grant of consent where the height or FSR exceed 24m or 3:1. Clause 4.6 provides a conditional pathway to approval but satisfaction of its provisions impose a pre-condition to a consent authority exercising the power to grant consent. Accordingly, cl 4.3 and cl 4.4 of the LEP are inconsistent with cl 29(4) of the SEPP, with the consequence that the SEPP prevails and it is not necessary to resort to cl 4.6 of the LEP for permissibility. … In simple terms, cl 4.3 and 4.4 mandate that consent be refused when the development proposed is in breach of their provisions. Clause 4.6 constrains the power to grant development consent unless its conditions are satisfied. The provisions of the LEP are inconsistent with the SEPP because no such constraint is contained within the SEPP. Clause 29(4) permits the grant of development consent 'whether or not the development complies with the standards set out in sub-clause (1) or (2)'. [emphasis added]" (Applicant's written submissions, 26 June 2020, p 5) 1. In support of his submissions, Mr McEwen references two decisions of the Court: 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 (Liverpool Road v Inner West) and Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285 (Hastings Point v Tweed Shire). 2. In the Liverpool Road v Inner West decision at [44], Moore J held that cl 29(4) of SEPP ARH is a "provision that does not provide an automatic pathway to approval but one which requires consideration of discretionary matters in an assessment of the propose height exceedance". Moore Jaccepted the submission of the Applicant that approval may be granted to the development despite the non-compliance with the relevant maximum height standard in the LEP "because cl 29(4) of SEPP ARH prevails over the prohibition in clause 4.3"at [28]. He concludes that the strict regime in cl 4.6 did not apply to fetter the discretion in cl 29(4). Specifically, at [48]: "I do not consider that a strict cl 4.6-like approach is mandated because there is nothing in the terms of this provision of the SEPP that purports to impose fetters on the exercise of the discretion given by it in the fashion that arises from the very structured testing regime that flows from cl 4.6 itself. The absence of such a regime, in my view, means that it is inappropriate to infer that such a strict regime would be required to be applied." 1. The reasoning in Liverpool Road v Inner West is consistent with the submissions of Mr McEwen. 2. Relevant to these proceedings, the Hastings Point v Tweed Shire decision, per McColl JA, Basten JA dissenting, held at [1]: "Where cl 8(1) of the TLEP mandates that the Council must refuse consent to development unless the three conditions to which it refers are satisfied, and cl 17 of SEPP-SL permits the development to which it refers despite the provisions of any other instrument if the development is carried out in accordance with SEPP-SL, the two clauses are incapable of concurrent operation, and inconsistency arises between them.[citations omitted]." 1. It is notable that the decision in Hastings Point v Tweed Shire involved the statutory interpretation of State Environmental Planning Policy (Seniors Living) 2004, in which cl 17 states: 17 What Chapter does This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy– (a) development on land zoned primarily for urban purposes for the purpose of any form of seniors housing, and (b) development on land that adjoins land zoned primarily for urban purposes for the purpose of any form of seniors housing consisting of a hostel or a residential care facility. 1. In the alternative, Mr Seton argues that cl 29(4) of SEPP ARH does not operate to set aside the FSR and height standards in LEP 2012 and that the development cannot be approved unless a written request pursuant to cl 4.6 of LEP 2012 is upheld by the Court. Mr Seton's reasoning is summarised in his submission as follows: "Clause 29(4) says that "[a] consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2)". Clause 29(4) is directed only to the standards set out in subclause (1) or (2) and is merely confirming that a non-compliance with those standards does not mandate refusal of the development application. Whilst the provisions of SEPP ARH prevail where there is an inconsistency with provisions in RLEP 2012, there is no inconsistency between clause 29(4) of SEPP ARH which does not mandate refusal of an application that does not comply with the density and scale standard in 29(1) of SEPP ARH and the provisions of RLEP 2012 which allow for the an application that contravenes the floor space ratio standard in clause 4.4 if a written request is made to contravene the standard and the consent authority is satisfied of the matters in set out in clause 4.6(4) of RLEP 2012. Accordingly, the floor space ratio development standard in clause 4.4 of RLEP 2011 continues to operate in respect of the development [emphasis added]." (Respondent's written submissions, 17 July 2020, p 11) 1. In support of his submissions Mr Seton references the decision of Gray C in Parker Logan Property Pty Ltd v Inner West Council [2018] NSWLEC 1339 (Parker Logan v Inner West). He submits that the Court should adopt the reasoning of Gray C at [38]-[47] of Parker Logan v Inner West in the current proceedings. Part of those referenced paragraphs are reproduced below: "38. The difficulty I have in considering and applying the decisions of the Court relied upon by the Council is that neither Brown C nor Moore J outline their view of the construction of cl 29(4) in its context and how, in light of that construction, they reached the conclusion that an inconsistency arises with cl 4.6. In undertaking that task of statutory construction, for the following reasons I reach a different view. 39. Clause 29(4) operates in the specific context of cl 29. Clause 29(1) and (2) set out minimum criteria, which if met, prevents a refusal of consent based on the underlying purpose of the criteria. They are "must not refuse" grounds that might have otherwise been used by consent authorities to refuse the application, but do not constitute development standards. They operate only one way, precluding a consent authority from refusing consent if specified minimum standards are met. 40. As cl 29(1) and (2) operate only one way, prohibiting the refusal of consent if those minimums are met, they are silent on what occurs if the minimums are not met. As such, a question arises as to whether, if the minimums are not meant, this should result in the refusal of the application. Clause 29(4) addresses this question, making it clear that a consent authority may grant consent "whether or not the development complies with the standards set out in subclause (1) or (2)". That is the extent of the operation of cl 29(4). 41. That being the extent of the operation of cl 29(4), the development standards in the MLEP 2011 continue to apply to the development (notwithstanding that it so happens that some of the criteria in cl 29(1) and (2) are taken from the development standards). There is nothing in cl 29(4) that operates to create an inconsistency with the development standards in the MLEP 2011. 42. As such, the only way the consent authority, or the Court exercising the functions of the consent authority, can grant consent to development that contravenes a development standard is through cl 4.6 of the MLEP 2011. There is nothing in cl 29(4) of the SEPP ARH that is inconsistent with the terms of cl 4.6. That is: • Clause 29(4) of the SEPP ARH makes it clear that the discretion to grant consent remains despite a non-compliance with (1) or (2), and; • Clause 4.6 of the MLEP 2011 makes it clear that consent cannot be granted if there is a breach of a development standard in the MLEP 2011 unless certain pre-conditions are met. 43. For cl 8 of the SEPP ARH to operate such that the terms of cl 29(4) prevail over the terms of cl 4.6, there must be an inconsistency between the two provisions. In the words of Kirby P in the Court of Appeal in Coffs Harbour Environment Centre Inc v Minister for Planning (1994) LGERA 324, "there will be an inconsistency if, in the provisions of one environmental planning instrument, there is "want of consistency or congruity"; "lack of accordance or harmony" or "incompatibility, contrariety, or opposition" with another environmental planning instrument." Young JA stated it differently in Hastings Point Progress Association Incorporated v Tweed Shire Council 168 LGERA 99, [2009] NSWCA 285 at [84], "if there is a situation where there is a "can do" under the SEPP-SL and a "can't do" under the local environmental plan, then the SEPP-SL prevails." In considering the meaning of "inconsistency", and the guidance provided by the authorities on what that means, I do not accept that the terms of cl 29(4) and cl 4.6 are inconsistent, and nor do I accept that the way that they operate creates incompatibility, contrariety or opposition. Therefore, where there is a breach of a development standard, cl 4.6 of the MLEP 2011 applies and a cl 4.6 request is required." 1. For completeness I note that the question of whether there is inconsistency between cl 29(4) of SEPP ARH and a development standard in a relevant local environmental plan (LEP), in this case LEP 2012, has also been considered in: Boyce v Inner West Council [2019] NSWLEC 1521 ('Boyce') and Maham Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1168 ('Manham Group'). I have read and considered these judgments. 2. Having considered the submissions of the parties and the relevant caselaw on balance, I prefer the approach to statutory interpretation submitted by Mr Seton and that outlined in Parker Logan v Inner West. My reasoning is as follows: * I accept and adopt the reasoning of Gray C at [39]–[42] of Parker Logan v Inner West (extracted at[70]). In examining the text of the two provisions I am not persuaded by the submission of Mr McEwen that because cll 4.3 and 4.4 of LEP 2012 mandate that consent must be refused when development is in breach of their maximums, unless a cl 4.6 written request is upheld, these provisions are inconsistent with cl 29(4) of SEPP ARH on the basis that it permits the grant of development consent 'whether or not the development complies with the standards set out in subclause (1) or (2)'. * I accept and adopt the submission of Mr Seton that: "there is no inconsistency between clause 29(4) of SEPP ARH which does not mandate refusal of an application that does not comply with the density and scale standard in cl 29(1) of SEPP ARH and the provisions of LEP 2012 which allow for the an application that contravenes the floor space ratio standard in clause 4.4 if a written request is made to contravene the standard and the consent authority is satisfied of the matters in set out in clause 4.6(4) of LEP 2012". I am satisfied that there is nothing in cl 29(4) that operates to create an inconsistency with the development standards in LEP 2012. * For the provisions of SEPP ARH to prevail there needs to be a finding of inconsistency between the provisions: cl 8 of SEPP ARH. I note that the provisions of cl 4.6 in LEP 2012 can be used to vary a standard within SEPP ARH, for example the provisions of cl 30 of SEPP ARH in relation to motorcycle parking. The provisions of cl 30 of SEPP ARH however are development standards that must be complied with to empower a consent authority to grant consent, in the same way that the development standards for height and FSR are in LEP 2012. * In my view it is an important difference that the provisions of cl 29 of SEPP ARH are provisions by which consent cannot be refused if they are complied with, a point made clear by cl 29(4) of SEPP ARH. The provisions of cl 29(4) of SEPP ARH are therefore discretionary provisions which can be varied by a consent authority subject to merit assessment, not the satisfaction of specific tests such as those at cl 4.6 of LEP 2012. This is in contrast the provisions of cll 4.3 and 4.4 of LEP 2012 which are development standards that are required to be complied with and can only be varied by the satisfaction of the specific tests detailed within cl 4.6, without that satisfaction the power to grant consent is not enlivened. * I am satisfied that the provisions of cl 29(4) of SEPP ARH and of cll 4.3 and 4.4 of LEP 2012 are separate, and not inconsistent provisions. For example, it is possible to imagine a variation to height that would be acceptable on merit (applying cl 29(4) of SEPP ARH) but may not meet the strict tests of cl 4.6 of LEP 2012 at subcl (3)(a): to demonstrate 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. * I am not satisfied that actual contrariety between the provisions is clearly apparent: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [48]. * Further, the Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] held that the principle of harmonious operation, which applies to provisions within one statute also applies to the construction of provisions within different statutes of the same legislature and creates "a very strong presumption that the legislature did not intend to contradict itself, but intended that both should operate". * Finally, applying the legal principles detailed in the recent decision of the NSW Court of Appeal in Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106 at [5]-[13], I am satisfied that it is appropriate to give preference to a reasonable construction of the two provisions that achieves a harmonious result. 1. On the preceding basis, I find that it is necessary to consider the written requests from the Applicant in support of their variation to the development standards in LEP 2012 in relation to FSR and Height. Assessment of the variation requests pursuant to cl 4.6 of LEP 2012: 1. Clause 4.6 of LEP 2012 contains a precondition to consent at subcll (3) and (4) as follows: (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating— (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless— (a) the consent authority is satisfied that— (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. 1. It is clear from a reading of cl 4.6 of LEP 2012 that the onus is on the applicant to meet the tests of cl 4.6 in seeking flexibility to the height or FSR standards by demonstrating that the breaches of the two development standards are justified. 2. 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, the consent authority 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 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)). 1. I have applied these tests to the current application in the following. Is the proposed development consistent with the objectives of the zone? 1. The subject site is zoned B2 Local Centre. The objectives of the zone are reproduced at paragraph [25] • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To enable residential development that is well-integrated with, and supports the primary business function of, the zone. • To facilitate a high standard of urban design and pedestrian amenity that contributes to achieving a sense of place for the local community. • To minimise the impact of development and protect the amenity of residents in the zone and in the adjoining and nearby residential zones. • To facilitate a safe public domain. 1. The FSR variation request prepared by the Applicant (Exhibit D) argues that the proposed development is consistent with the objectives of the B2 Local Centre zone on the following grounds: * As student accommodation the proposed development will contribute to providing a range of retail, business, entertainment and community uses. * The proposed development will create new full-time and part-time employment opportunities within walking distance of the Kingsford local shopping centre and public transport. * The subject site is in an accessible location, proximate to a number of bus services and the light rail. Further, the request argues that the site is well serviced by footpaths which encourage walking and cycling. * That the proposed development will support the continued operation and future growth of the Kingsford local shopping centre. * The proposed development has a high-quality built form outcome and has been sensitively designed to protect the amenity of the adjoining residents. * "The non-compliant FSR will have no impact on the amenity of pedestrians as it is situated entirely within the built form and will have no visibility from either Gardeners Road or Southern Cross Close" (Exhibit D). * The development provides an active street frontage at ground floor and the upper floor accommodation rooms overlook both Gardeners Road and Southern Cross Close. 1. The height variation request (Exhibit 9) argues the proposed development is consistent with the zone objectives on broadly the grounds outlined at [79] with the addition of the following: " – the proposal represents the orderly and economic development of land in the B2 Local Centre zone for a consistent use that will support the ongoing business functions of the zone. … - the location of the additional height above (the) 24m height control does not provide any additional overshadowing of adjoining land uses. Requiring the development to locate the GFA that is currently above the height limit elsewhere on site would result in a much greater impact on the surrounding land uses." (Exhibit 9) 1. The motorcycle parking variation request (Exhibit E) replicates the grounds argued at [79] with the addition of the following: " – the proposed development will be located in an accessible location which is in proximity to a number of bus services on Gardners Road and ANZAC Parade as well as to recently constructed light rail stations which maximises public transport patronage. Furthermore, the proposal incorporates bicycle parking, which exceeds the requirements of the SEPP, and is surrounded by a series of footpaths which encourage walking and cycling. Providing additional private motorcycle parking would actively reduce public transport patronage and discourage walking and cycling … - … The development, which facilitates solely for the accommodation of students, promotes sustainable forms of transport (bicycle and walking). The reduction in the number of motorcycle spaces supports this vision and encourages interaction with the community and its services, … - The reduction in motorcycles will decrease the number of additional traffic on the roads. It will also encourage pedestrian activity thereby increasing visual surveillance in the area and community safety." (Exhibit E) 1. In considering the question of consistency in relation to the zone objectives, I have utilised to the guiding principle defined in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGERA 21, at [21] as follows: "the guiding principle then is that development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that is compatible." 1. On the basis of the arguments in the variation requests I accept that, individually, it can be reasonably argued that the proposed development is consistent with the objectives of the B2 Local Centre zone, as detailed at 25]. 2. Pursuant to cl 4.6(4)(a)(ii) of LEP 2012, I find the proposed development is consistent with the zone objectives. The breach of the FSR development standard Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? 1. The objectives of cl 4.4 Floor space ratio within LEP 2012 are: (a) to ensure that the size and scale of development is compatible with the desired future character of the locality, (b) to ensure that buildings are well articulated and respond to environmental and energy needs, (c) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item, (d) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. 1. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] (Wehbe). 2. Namely, that: 1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); 2. the underlying objective or purpose of the standard is not relevant to the development so that compliance is unnecessary (Wehbe test 2); 3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3); 4. that the development has virtually been abandoned or destroyed by the Council's actions in departing from the standard (Wehbe test 4); or 5. that the zoning of the land is unreasonable or inappropriate so that the development standard is also unreasonable or unnecessary (Wehbe test 5). 1. In Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 8 (Initial Action), Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22] of Initial Action). 2. Relying on Wehbe test 1, the written request seeking to vary the FSR standard argues that compliance with the standard is unreasonable or unnecessary as the objectives of the standard are achieved notwithstanding non‐compliance with the standard in the circumstances. The request argues the objectives of the standard are met on the following grounds. 3. In relation to objective (a) of cl 4.4 of LEP 2012, the FSR development standard: * That the desired future of the locality is that represented by the draft planning controls in the draft planning proposal. The written request notes that the draft planning proposal envisages an FSR of 4:1 for the subject site. If a future development for the site was to also rely on cl 29(1)(c)(ii) of SEPP ARH, this FSR would increase to 4.8:1. * The proposed variation to the FSR control is less than 4:1 (the future development standard) and is considered to be acceptable from a perspective of the development's height, bulk and scale. * That the 'slight' variation has no impact on the development's scale or size. * That, given the three preceding points, the proposed development is clearly compatible with the desired future character. * Further: "The adjoining site at 14-230 Gardners Road, Kingsford was approved in 2011 for an 8 storey boarding house with ground floor commercial development. It is recognised that the development was approved under former controls, however the approval provides consent for a building with an FSR of 3.39:1. The development reaches 8 storeys and establishes the dominant streetwall height along Gardners Road. The proposed density is compatible with the bulk and scale of this development. When viewed from the surrounding streetscape from Gardners Road, the proposal is consistent in scale and contributes to a continuous 8 storey street wall alignment. Accordingly, the additional proposed FSR does not give rise to a density or scale that is at odds with the surrounding development. The proposed development along with the existing development at 14-20 Gardners Road establish the preferred development pattern along Gardners Road, which can be replicated in the future redevelopment of the site to the west." (Exhibit D) 1. In relation to objective (b) of cl 4.4 of LEP 2012, the FSR development standard: * "… that the additional floor space is largely located in the basement, and internally in the parking/loading area, as well as a small lobby adjacent Southern Cross Close. As such, removal or re-purposing of excess floor space would not better articulate the building, which in its current design, is already achieved as noted by Council's Design Excellence Panel" (Exhibit D). * That the proposed development has been designed to respond appropriately to the surrounding area, through the use of appropriate materials, massing, setback, horizontal and vertical articulation. Further, the facade to Gardeners Road has been designed to reinterpret the contributory facades of the existing buildings. * The BASIX and NATHERS certification of the proposed development confirm the proposed development meets the requirements in the relevant planning instruments for sustainability. 1. In relation to objective (c) of cl 4.4 of LEP 2012, the FSR development standard: * The subject site is not a heritage item and is not located in a heritage conservation area. However, the site does contain a 'contributory façade' under cl 2.6 of Section D2 of DCP 2013. * The additional GFA does not increase the perceived bulk of the development as viewed from the public domain, nor detract from the reinterpretation of the contributory facades. * In the context of the overall scale of the proposed development, and the surrounding context, the additional GFA arising from the variation is not considered to be "intensity or income generating to the development" (Exhibit D). 1. In relation to objective (d) of cl 4.4 of LEP 2012, the FSR development standard: * That the proposed development will not adversely impact on the amenity of adjoining land in respect of visual bulk, loss of privacy, overshadowing and views. * The internal planning of the proposed development focusses windows to the east and west to prevent unreasonable overlooking to adjoining properties. Where windows are provided to the south, they are setback by a recess in the facade. * The overshadowing analysis provided with the development application demonstrates that the proposed development will not unreasonably overshadow adjoining properties or the adjacent Dacey Park. The overshadowing generated falls predominately within the shadow cast by a compliant scheme. * The objective seeks for development not to adversely impact. Not for the development to have no impact. 1. Ms Bartlett, the author of the written request to vary the FSR standard, argues on the preceding grounds that the development meets the objectives of the standard notwithstanding the variation and therefore concludes that compliance with the standard is unreasonable in the circumstances of the case. 2. In the alternative, Ms Manahan's oral evidence was that in her assessment the proposed development met the objectives of the FSR standard with the exception of objective (d). She argues that if the GFA was reduced to compliance through the deletion of rooms from the top of the northern building, the impacts arising from overshadowing would be reduced. 3. Mr McEwen submits that "to the extent that there is excess GFA, it should be noted that it will be accordant with the objectives of the standard, which include compatibility with the desired future character and lack of adverse impact on amenity. The desired future character of the locality includes the fact that the Council proposes that the site FSR will increase to 4:1" (Applicant's written submissions, 26 June 2020, p 7). 4. Further, Mr McEwen adopted the argument of Ms Bartlett that the removal of the excess GFA would not better articulate the building and that the excess GFA is contained below ground in the basement. 5. In his oral submissions Mr Seton emphasised that the variation to GFA could be identified anywhere within the proposed development, and in fact a development compliant with the FSR standard may be achieved by the deletion of some boarding rooms. He disagrees with the Applicant's submissions that the relevant GFA could be limited to the areas identified in the basement and the lobby. He argued that on Ms Manahan's evidence the excess GFA may contribute to the overshadowing impacts of the development, inconsistent with objective (d). Findings 1. The FSR variation request provides an argument, or rationale, as to why certain components of the proposed development do not fit the definition of GFA. I accept Mr Seton's submission that such arguments are not relevant to the consent authority's consideration of whether the FSR variation request adequately demonstrates the matters in cl 4.6 of the LEP 2012. These arguments are more appropriately referable to the application of the GFA definition in LEP 2012. 2. In considering whether compliance with the FSR development standard is unreasonable or unnecessary in the circumstances, it is appropriate to commence my reasoning stating that I am not persuaded that the variation sought is 'slight' or that it can be said that it is located in the basement of the proposed development. I accept the submission of Mr Seton that the variation could be identified anywhere in the proposed development. Further, I accept that the extent of the variation (27.8m²) could equate to a number of boarding rooms if the standard at cl 29(2)(f)(i) of SEPP ARH is applied. 3. This approach is consistent with the statement of Preston CJ in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 at [88]-[89], namely that: "Clause 4.6(2) permits development consent to be granted for development even though the development would contravene a development standard. Clause 4.6(3) and (4) prohibit the grant of development consent for development that contravenes a development standard unless the conditions in those subclauses are satisfied. These subclauses focus attention on the "development" for which development consent is sought and which contravenes the development standard. In this case, that development is the alterations and additions to the approved residential flat building. Baron's selection of that development as the subject of its development application leads to complications when making and evaluating the written request under cl 4.6 seeking to justify that development's contravention of the development standard in cl 4.4(2) of SLEP. As Baron pointed out, the floor space ratio development standard in cl 4.4(2) cannot readily be applied to the development of alterations and additions to the approved residential flat building. The concept of floor space ratio applies to the whole building on the land, not a part or parts of the building. But this problem is engendered by Baron's selection of the development for which it would seek consent. [emphasis added]" 1. I accept the arguments advanced by the written request seeking to establish that the objectives (a) through (c) of the standard are met notwithstanding the variation. 2. In relation to objective (d) I am satisfied that the approach required by the test in cl 4.6 of LEP 2012 is not a comparison between the merits of a complying scheme and the proposed scheme to determine if the development achieves the objectives of the standard: Initial Action at [90]. 3. In the joint planning report Ms Manahan concludes that the overshadowing impact of the proposed development is acceptable. 4. On the basis of the agreed evidence of the experts that the impacts arising from the proposed development are acceptable, I am satisfied that objective (d) of the FSR standard is achieved notwithstanding the non-compliance with the control. 5. I find that I can be satisfied that the applicant's written request adequately demonstrates the matters in cl 4.6(3)(a) of the LEP 2012. Are there sufficient environmental planning grounds to justify the variation? 1. In Initial Action at [24] Preston CJ reinforced that the environmental planning ground relied on in the written request must be sufficient in two respects. Firstly, that the environment planning grounds in the written request must be sufficient "to justify contravening the development standard", noting that the focus of the justifications is on the aspect or element of the development contravening the standard, rather than the development as a whole. Secondly, "the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]". 2. The FSR variation request also proffers a number of matters that it describes as environmental planning grounds that justify the contravention of the FSR development standard. Those grounds can be summarised as follows: 1. That the proposed development allows for the promotion and co-ordination of the orderly and economic use and development of the land. The request argues that this is demonstrated by the proposed development having an FSR significantly below the potential future maximum FSR proposed under the draft planning proposal. The proposed development will deliver on one of the key objects of the EPA Act: (c) to promote the orderly and economic use and development of land. 2. The proposed development strongly aligns with the desired future character as outlined in the draft planning proposal. 3. That the variation is a result of "a nuanced interpretation of what constitutes GFA under the Standard Instrument definition" (Exhibit D). 4. In terms of the scale and size of the development, the variation is slight and has no impact on the development bulk or scale, but rather is circulation, loading and lobby space. The excess GFA will have no perceptible impact when viewed from the surrounds. 1. Mr Seton submits that the Court should find that it is not satisfied of the matters set out in cl 4.6(4) of LEP 2012, in particular that the FSR variation request had adequately demonstrated that there are sufficient environmental planning grounds. Mr Seton argues: * The Court should not give weight to the arguments submitted in the written request why certain areas should not be counted as GFA. He submits that these are not environmental planning grounds that justify a contravention of the FSR standard. * The written request argues that the variation is justified on the grounds that the planning controls are proposed to be changed, with the draft planning controls proposing an increase in FSR. Mr Seton argues that the variation request "fails to appreciate that the increased floor space ratio will only be available to development that provides a community infrastructure contribution" (Respondent's written submissions, 17 July 2020, p 12). No community facilities are proposed in the development. * That the statement in the written request that the exceedance of FSR had no impact on the scale, and intensity of the development is incorrect. He argues that in fact it is the building as a whole which exceeds the FSR standard given that all of those areas must be counted towards the GFA for the purposes of the FSR variation request. In fact, Mr Seton argues that the exceedance of GFA could been seen to equate to approximately five to six boarding rooms. Mr Seton concludes: "Whilst the additional or contravening gross floor area could be anywhere in the building it is potentially adding to the scale and bulk of the building and consequential impacts. It cannot be reasonably said that it has no impact on the scale and intensity of the development as is suggested in the bullet point." (Respondent's written submissions, 17 July 2020, p 12) 1. In the alternative, Mr McEwen submits that the grounds detailed in the FSR variation request are sufficient environmental planning grounds to justify the contravention. In particular, he argues that the development standards proposed in the draft planning proposal introduces a maximum permissible FSR of 4:1, significantly in excess of what is proposed by the application. Further, pursuant to s 4.15(1)(a)(ii) of the EPA Act the proposed instrument must be taken into consideration in determining the development application. 2. Finally, Mr McEwen notes that the parties agree that the building exhibits design excellence in accordance with cl 6.11 of LEP 2012. The request does not establish sufficient environmental planning grounds. 1. As noted at [107] the environmental planning grounds advanced in the written request must be sufficient in two ways. Following a review of the FSR written request, and the submission made, I am not satisfied that there are sufficient environmental planning grounds to justify the contravention of the FSR standard sought by the proposed development. 2. Firstly, I am not persuaded that the grounds advanced are, in all cases, environmental planning grounds. For example, the fact that in the authors view parts of the building said to comprise GFA are, in their opinion, not GFA, is not an environmental planning ground. I accept and adopt Mr Seton's submissions in this regard. 3. Further, as clarified in Initial Action at [24], the environmental planning grounds advanced in the written request must focus on the aspect or element of the development that contravenes the standard. In contrast I find the grounds advanced in the FSR written request promote the benefits that will be realised by the development as a whole. This finding infects grounds (1), (2) and (4) summarised at [108]. 4. Secondly, if the grounds advanced at [108] are accepted to be environmental planning grounds, I find they are not sufficient. I am not satisfied that the grounds advanced are either quantitatively and/or qualitatively sufficient. For example, the written request argues that environmental planning grounds that supports the requested variation aret: "- the proposed FSR of 3.7:1 is significantly below the potential future maximum FSR of up to 4.8:1, which could be achieved under the draft K2K Planning controls, which have been exhibited, endorsed by Council and are currently with DPIE for finalisation, which I consider to be imminent and certain. … In terms of scale and size of the development, the slight variation of 90sqm has no impact in the development's scale or size, which is compatible with the desired future character if the locality including the future controls identified in the Kensignton (sic) to Kingsford draft LEP amendment, which permits great (sic) height and floor space than the current controls." (Exhibit D) 1. The reasoning in the above grounds advanced is inconsistent. It may be the case that an increase in scale and height of the development may assist in compatibility with intended larger scale building under future controls. But if this is the ground advanced it can't, in my view, also be the case that the variation (to which the benefit must arise or be tied) has no impact on the scale of the development. 2. When looked at collectively I find I am not satisfied that the environmental planning grounds advanced in the FSR written request are sufficient grounds to justify the contravention of the development standard. 3. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) of LEP 2012 and consequently there is no power to grant consent to the development application which does not comply with the FSR control in cl 4.4 of the LEP 2012 and the application must fail. The breach of the height development standard 1. The height variation request (Exhibit 9) details that the proposed development seeks to vary the 24m height control by proposing a maximum height of 26.3m. The variation is located in the building fronting Gardeners Road and involved the lift overruns and the screens which surrounded the roof plant. The Height variation request states: "The variation to the height control can also be attributed to the provision of additional floor space ratio (FSR) applied under Clause 13 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP). The siting of some of this additional FSR above the height limit addressing Gardners Road is the most suitable location without resulting in any unreasonable impact to surrounding development or future occupants." (Exhibit 9) 1. In the joint planning report, the experts agree that the "Applicant has agreed to reduce the buildings height" (Exhibit 9). The report goes on to detail that this is intended to be achieved by a reduction in the lift overrun by 0.6m in the Southern building fronting Gardeners Road. Subject to this change, and an updated clause 4.6 variation request (which was tendered in the proceedings), the experts are in agreement that the proposed height is acceptable and can be supported (Exhibit 9). Consistency with the zone objectives: 1. Addressed in paragraph [83]-[84]. Consistency with the objectives of the standard in question: 1. The objectives of cl 4.3 Building Height of LEP 2012 are: (1) The objectives of the clause are as follows– (a) to ensure that the size and scale of development is compatible with the desired future character of the locality, (b) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item, (c) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. … 1. I note that the objectives of the building height standard in LEP 2012, despite being different development standards, are the same as the objectives of the FSR standard in LEP 2012. 2. Relying on Wehbe test 1, the height variation request argues that compliance with the standard is unreasonable or unnecessary as the objectives of the standard are achieved notwithstanding non‐compliance with the standard in the circumstances. The request argues the objectives of the height standard are met on the following grounds: 1. Objective (a): * The proposed development responds to the dominant streetwall established by 14-20 Gardeners Road, next door to the subject site, by providing an eight storey streetwall frontage. * Under the draft planning proposal, the site would be subject to a height control of 31m and nine storeys. The request argues that the subject development is compatible with this desired future character. * That the proposed height (including the variation sought) is consistent with the development application approved in June 2016 under consent: DA/915/2015. 1. Objective (b): * The height variation request does not detail how objective (b) of the standard is achieved, notwithstanding the development's non‐compliance with the height standard. 1. Objective (c): * The site planning of the proposed development has employed a built form strategy that provides a smaller building to the north (Southern Cross Close) to maintain solar amenity to the larger building fronting Gardeners Road. Further, the proposed development ensures that the adjoining property (14-20 Gardeners Road) maintains solar access until 1pm in mid-winter. Similarly, the request argues that the proposed development ensures that allotments to the west of the subject site will receive unobstructed solar access from 1pm onwards in mid-winter (Exhibit 9). * The written request argues the overshadowing to Dacey Park would be minimal and "will not impact the overall enjoyment and use of the park by the public" (Exhibit 9). The written request notes that in mid-winter between 10am and 2pm overshadowing is restricted to a portion of the park which contains existing trees which are already providing shade. Further, the request argues that after 3pm the overshadowing from the proposed development occurs where the park is already overshadowed by existing development. * The written request concludes that the proposed development produces overshadowing impacts commensurate with a development which complies with the 31m height limit that is envisaged by the draft planning proposal. As such the "the extent of the overshadowing impacts are considered to be acceptable on the grounds that they are no greater that what is permitted by the future planning controls" (Exhibit 9). * Finally, "the proposal is required to ensure that the impact of the additional height does not adversely impact the ability to enjoy the park – not that the impact is less than a compliant scheme. On account that the proposal only overshadows a small portion of the park, which is currently shaded by established trees during peak use times, the proposal is not considered to adversely impact the amenity of the park. Furthermore, the fact that the adjoining properties will maintain unimpeded solar access for the entire morning or afternoon ensures a suitable level of solar access is afforded to adjoining development" (Exhibit 9). Findings 1. I accept that the arguments advanced by the height variation request establish that the objectives are met notwithstanding the non-compliance, and that therefore compliance with the height standard is unnecessary in the circumstances. I accept the agreed evidence of the planners in this regard. 2. I find that I can be satisfied that the applicant's written request adequately demonstrates the matters in cl 4.6(3)(a) of the LEP 2012. Are there sufficient environmental planning grounds to justify the variation? 1. The height variation request also proffers a number of matters that it describes as environmental planning grounds to justify the contravention of the height development standard. Those grounds can be summarised as follows: 1. That the proposed development will 'create a 'strong planning outcome' given it provides 'student accommodation' services. Further, that the development of the site for student accommodation is consistent with one of the key objects of the EPA Act: "(d) to promote the delivery and maintenance of affordable housing" (Exhibit 9). 2. That the exceedance of the height over the 24m standard can, in part, be attributed to the provisions of bonus FSR, pursuant to cl 29(1) of SEPP ARH. 3. It can readily be seen that the diversification of residential development types is 'a better outcome' (objective (b) in clause 4.6 if the RLEP 2012). The ARH SEPP recognises that the diversity of housing options (other than just providing residential flat buildings) provides a better planning outcome by incentivising boarding house development where residential flat building are permitted by affording additional FSR in accordance with Clause 29(1)" (Exhibit 9). 4. The Height variation request notes that the Court has previously held that the provision of affordable housing was considered an environmental planning ground which justified the exceedance: Abdul-Rahman v Strathfield Council [2014] NSWLEC 1237; Legacy Property Pty Ltd v Waverley Council [2014] NSWLEC 1150; Valen Properties Pty Ltd ATF Valen Properties Trust v Hurstville City Council [2015] NSWLEC 1045; Zhang and Anor v Council of the City of Ryde [2016] NSWLEC 1179. 5. The additional height delivers on the bonus FSR provided by cl 29(1) of SEPP ARH, and ultimately allows for the delivery of a greater number of student accommodation rooms. The request notes that these additional rooms sit within the height limit, with the exceedance generated by the lift overrun and a building parapet. 6. That the height exceedance is instrumental to managing amenity impacts, whilst allowing for the optimisation of FSR. The written request elaborates this benefit as follows: "Compliance with the maximum Height of Buildings Development Standard would necessitate the reduction in the height of the southern building from 8 to 7 storeys, and the relocation of the residual GFA/ boarding rooms to the northern building fronting Southern Cross Close. The reallocation of the floorspace would then allow the lift overrun and parapet to sit within the limits of the height restriction. However, this approach is not considered suitable as any increase to the bulk of the northern building would give rise to additional amenity impacts. … With regard to amenity impacts, the northern building has been designed to be sympathetic with the established development at 14-20 Gardners Road, Kingsford. The northern building has a smaller footprint. In consequence, the relocation of the seventh storey (with GFA/FSR of 352m² and 0.38:1 respectively) from the southern building to the northern building would necessitate the provision of two additional storeys. These two additional storeys would create an inconsistent built form along Southern Cross Close. Furthermore, the additional height in this located would further restrain the ability to gain solar access to the boarding rooms within the proposed development and would further overshadow the adjoining sites to the east and west." (Exhibit 9) 1. That the increased height will not unreasonably impact upon the character of the surrounding locality as the development is consistent with the approved existing built form and setbacks of the adjoining development to the east: 14-20 Gardeners Road. 2. The highest point of the proposed development will not be visible from the public domain. 1. Mr McEwen summarises that the Height variation request should be upheld as the proposed height will be consistent with the objectives of the standard and the zone, particularly where the desired future character of the locality includes a 31m height limit and the development will not adversely impact on amenity. 2. In the planning joint report, the planning experts state: "f. The experts agree that, subject to the amendments outlined in the Joint Report being completed as conditions of consent and Clause 4.6 variations and additional information provided in the Appendices, the proposed development resolves the matters raised in the following contentions: a. Contention 1 – Building Height b. Contention 5 – Building Design, Façade and Articulation c. Contention 14 – Insufficient information." (Exhibit 5) The request establishes sufficient environmental planning grounds 1. As noted earlier in the judgment, for the purposes of cl 4.6(3) of LEP 2012 need to be sufficient to justify the contravention of the development standard. In this case the maximum height development standard in LEP 2012. 2. I am satisfied in this case that the height written request adequately establishes sufficient environmental planning grounds that justify the variation of the height standard. However, I do not adopt all of the environmental planning grounds advanced by the request. My reasoning is as follows: 1. The height written request seeks to argue that the form of the development is comparatively meritorious over an alternative form of development that was compliant with the height standard. Consistent with the decision of Moore J in Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191 at [57] and [63], I am not satisfied that this is an environmental planning ground, or that the reasoning demonstrates it is sufficient to justify a variation. Ground (5) and (7) fail for the same reason. Further, they are more accurately described as benefits of the development as a whole, rather that environmental planning grounds. 2. The written request advances the ground that the provision of affordable housing is an environmental planning ground. I accept that it is. An object of the EPA Act, at s 1.3(d) is to 'promote the delivery and maintenance of affordable housing'. In the circumstances of this case where almost the entirety of the development is focussed to the provision of affordable rental housing. I am satisfied that this environmental planning ground may be sufficient to justify the contravention of the height development standard where that variation is to accommodate plant and non-habitable space. However, as clarified by Preston CJ in Initial Action, "The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole" (at [24]). That is, the benefits, if they form environmental planning grounds, must be linked in some way to the breach of the height development standard. Applying the legal principle in Initial Action, the environmental planning grounds that are advanced in the written request must justify, or inform, the breach of the height development standard. I am not satisfied that the request adequately addresses this. Neither the written request, nor the evidence provide reasoning that establishes a link between the benefit arising from the provision of affordable housing and the breach of the height control. Ground (4) in [127] fails for the same reasons. 1. In relation to Ground (6) I am satisfied that the urban design outcome of a consistency of streetscape in Gardeners Road is an environmental planning ground. Further, it is an environmental planning ground that arises from the variation in the maximum height control. By reference to the height written request, Gardeners Road is the location of the breach of the height control. Given the limited nature of the height breach I am satisfied in the circumstances of this development that this environmental planning ground is sufficient to justify the variation to the height control. 1. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am satisfied under cl 4.6(4)(a) of LEP 2012. The breach of the motorcycle parking standard at cl 30(1)(h) of SEPP ARH 1. The need for the variation requests under cl 4.6 of LEP 2012, to vary the development standards for height and FSR in LEP 2012, arise from my findings at [72]-[73]. I accept that there have been decisions of the Court which apply alternative interpretations of cl 29(4) of SEPP ARH, which if correct obviate the need for the cl 4.6 variation requests to be upheld see: Liverpool Road v Inner West, Boyce, and Maham Group. 2. Accordingly, despite my finding that the precondition at cl 4.6 of LEP 2012 is not met for the FSR written request at [118], which would be sufficient to dispose of the proceedings, I am satisfied it is appropriate to also consider the remaining variation request on which the Applicant relies. That variation request is a request to the motorcycle parking standard at cl 30(1)(h) of SEPP ARH (the motorcycle parking variation request). 3. It is the agreed position of the parties that the variation to the development standard for motorcycle parking at cl 30(1)(h) of SEPP ARH relies on the Court upholding a written variation request cl 4.6 of LEP 2012, and that such a finding of satisfaction is a precondition to consent. 4. Clause 30(1)(h) of SEPP ARH requires that the consent authority must not grant consent to the boarding house development unless it is satisfied that at least one parking space will be provided for a motorcycle, for every 5 boarding rooms. The traffic engineers agree that the proposed development generates demand under cl 30(1)(h) of SEPP ARH for the provision of 25 motorcycle spaces. The development proposes 14 spaces at the ground floor of the development (Exhibit C), being a variation of 11 motorcycle spaces. 5. The question of the adequacy of the provision of motorcycle spaces was the subject of expert engineering evidence. Mr Hollyoak's evidence in the joint report is as follows: "51. It is unclear what the evidence base for the requirement for motorcycle parking at boarding houses to be so high, particularly in student accommodation. Evidence from other student accommodation sites suggests that very few people use motorcycles (only a handful on those sites where it occurs). I would suggest that based on my experience, the provision of 13 spaces is an over provision and simply they will not be used." (Exhibit 6) 1. Mr Hollyoak's conclusions are supported by evidence generated by his review of other student accommodation sites. The data is summarised in a table that forms part of Exhibit 9. I have reviewed that table as part of my assessment of the development application. I note that the analysis does not provide data of the provision of motorcycle spaces per room but provides data on a per bed basis. All sites analysed in the table are noted as being 'student accommodation'. 2. The provision of motorcycle parking is also addressed in the Applicant's Transport Assessment Report, which was approved by Mr Hollyoak (Exhibit B). That report states: "It is noted that the travel questionnaire survey results discussed in Section 4.2 [replaced by the comparative table in Exhibit 9] indicates that 14% of surveyed students said that they owned or planned to own a bicycle during their stay and 6% for a motor bike/ scooter (i.e. motorcycle use predicted to be less than 50% of bicycle provision). Indeed, this confirms TTPP's observation that motorcycle use at student sites is significantly less than cycle use. … In this regard, the proposed bicycle and motorcycle provision is expected to accommodate the future demand." (Exhibit B) 1. In the alternative, Mr McLaren's evidence is that the Applicant has failed to adequately justify the proposed variation to the provision of motorcycle spaces. He argues: "53. CM states that SEPP(ARH) 2009 requires the provision of 1 motorcycle space per boarding room and that no relaxation of this rate is presented in the SEPP. The applicant's submissions for relaxation of the requirement by some 12 motorcycle spaces (or 48%) has not been adequately justified by robust data of motorcycle demand at similar sites, including generic boarding houses as distinct from 'student accommodation', which has no specific control or definition for non-educational campus sites." (Exhibit 6) Are there sufficient environmental planning grounds to justify the variation? 1. The motorcycle parking variation request proffers a number of matters that it describes as environmental planning grounds that justify the contravention of the development standard. Those grounds can be summarised as follows: 1. That the development will create a 'better planning outcome' as it will promote the use of more sustainable forms of transport including public transport, cycling and walking. This is consistent with Randwick Council's approach to reducing vehicle trips within the local government area. 2. That the evidence provided in the joint traffic report demonstrates "almost no demand for motorcycle parking amongst student accommodation tenants, which is an environmental planning ground that differentiates this development from traditional boarding house developments" (Exhibit E). 3. That Transport for NSW has provided written advice to the applicant that "they would support a nil parking requirement for student accommodation land uses in general" (Exhibit E). 4. The proposed development provides bicycle parking in excess of the requirements of SEPP ARH, which is a more sustainable form of transport than motorcycles. 5. The proposal will generate minimal traffic impact in the surrounding road network given it provides minimal onsite parking for vehicles and 14 motorcycle spaces. 6. The proposed development will have a lesser impact than a compliant scheme. The request argues: "The proposal will not significantly impact upon the amenity of the adjoining neighbours, whereas encouraging unnecessary motorcycle use by the residents of the proposed development would result in additional noise impacts on neighbours" (Exhibit E). 7. That provision of a compliant number of motorcycle parking spaces would reduce the private open space for the central courtyard and the provision of deep soil landscaping. 8. That strict compliance with the development standard for motorcycle parking "would hinder the attainment of the objectives of the Environmental Planning and Assessment Act 1979 (the Act) and would not result in the orderly and economic use and development of the land" (Exhibit E). 1. Mr McEwen argues that the motorcycle parking variation request, and the evidence relied on by Mr Hollyoak to establish that adequate provision is made for motorcycle parking in the development, is "in orthodox form, is detailed, and is objectively persuasive" (Applicant's written submissions, 13 July 2020, p 5). 2. Mr McEwen submits that the evidence relied upon by the Applicant for the variation includes: "(a) An updated analysis spreadsheet (Ex 9 p 471) (Spreadsheet); (b) Correspondence and student surveys (Ex B pp 275-280) and further correspondence from Uni Lodge Australia dated 20 June 2020 (Ex 9 p 256); (c) Evidence of the Applicant's traffic expert, Mr Hollyoak, (joint report Ex 6) and transport assessment report (Ex B p 240-272); (d) Transport for NSW endorsement of the proposal dated 13 February 2020 (Ex 9 p 560); (e) Green Travel Plan (Ex B p 285-321) and operational plan of management 29 April 2020 (Ex B pp 187-211); and (f) Randwick DCP 2013 para 2.2 - car share (Ex 3 p 153) and Council vision statement for Kingsford town centre (Ex 4 p 133)." (Applicant's written submissions, 13 July 2020, p 6) 1. I note that not all of the matters listed at (a) through (f) correspond with the environmental planning grounds detailed in the motorcycle parking variation request. 2. Further, Mr McEwen argues that the future occupants of the development will be exclusively full or part-time students of tertiary institutions. He notes that the majority of the occupants are expected to attend UNSW given it is within 800m of the subject site. He notes that the subject site is in a highly accessible location which will reduce the demand for parking. 3. In his written submissions Mr McEwen extracts the relevant section of the correspondence from Transport for NSW referenced in [141(3)]: "As outlined in our submission to Randwick Council on the K2K strategy, TF NSW would support initiatives/policies that support more sustainable travel choices, including the take up of public transport, walking and cycling. Overall, we would support any policy by the above authorities that reduces (and caps) parking provision for many land use types or even nil for others (eg student accommodation). If the subject DA was referred to TF NSW we could provide a formal response, but the points highlighted such as the Green Travel Plan, increased and shared use bicycles, car-share with free membership to student occupants, and pre-loaded Opal card with education on public transport would appear to be a sensible approach to manage travel demand from your proposal." (Exhibit 9) 1. In his submissions Mr McEwen provides the following analysis of the spreadsheet of comparable student accommodation sites and the student surveys referenced by Mr Hollyoak: "20. The spreadsheet reveals the following key statistics with respect to the analysis of 21 student accommodation projects: (a) Of the seven SEPP approved student boarding house accommodation projects, there are 2,995 beds. All have been approved with no carparking provision and only one of those was approved prior to May 2011 when minimum carparking requirements were introduced. The carparking ratio per bed is zero. Applying that rate to the subject development would yield a requirement for no private carparking. Only three of seven SEPP projects provided motorcycle parking, resulting in a ratio per bed of 0.04. Applied to the current proposal (0.04 x 136 beds) yields a maximum demand of 5.44 motorcycle parking spaces for the site. 14 motorcycle spaces will be provided. The provision of 14 spaces is the equivalent of 0.1 space per bed. (b) Of the total of 21 student accommodation boarding house projects analysed, the Spreadsheet reveals that a total of 8,386 beds were approved, with a total of 272 carparking spaces. The ratio per bed is 0.03 spaces. Applied to the site, this would indicate a maximum demand of 4.08 cars (0.03 x 136 = 4.08). The subject site will provide four carparking spaces, but they will be in the form of exclusive use car-share spaces, which will be fully funded other than fuel. Being a shared use, the equivalent provision is many times greater than if they were allocated to individual student vehicles. The 21 projects provide a total of 173 motorcycle spaces at a ratio of 0.02 spaces per bed. Applied to the current proposal, this would generate a demand of 2.72 motorcycle spaces (0.02 x 136 = 2.72). The provision of 14 motorcycle spaces substantially exceeds the limited actual demand." (Applicant's written submissions, 13 July 2020, p 7) 1. Relying on the motorcycle parking variation request, Mr McEwen concludes that the Applicant has discharged the onus to demonstrate a proper basis for the departure from the development standard at cl 30(1)(h) of SEPP ARH. He submits that the variation should be upheld. 2. Mr Seton submits that the environmental planning grounds set out in the motorcycle parking variation request are not sufficient to justify the contravention of the development standard. He argues that each of the grounds are either not established by any evidence or are insufficient. Utilising the nomenclature at [141], his submissions are as follows: 1. 'better planning outcome': Mr Seton relies on the decision of the Court in Initial Action at [24] which in part states: "24. The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: citations omitted" 1. 'evidence establishes no demand': Mr Seton submits that this statement should be rejected by the Court on the following grounds: * There is no robust evidence provided to suggest that providing only 15 motorcycle spaces in the proposed development is adequate in terms of providing a more affordable or sustainable form of transport for residents of the boarding house; * The information complied in the spreadsheet is not comparable with the proposed development. Mr Seton makes the following submissions in relation to the surveys relied on by Mr Hollyoak: "- [they] Are of unknown origin (the survey in the Cardno report of 2011 referred to at paragraph 21 of Exhibit 6 relates to a development known as Urbanest Quay Street which is across the road from Central Station and [the survey] does not reveal who carried out the survey or provide the source information in relating to the survey collection; - Are not independent (the Unilodge surveys were provided directly to the Applicant (not Mr Hollyoak) by the operator of those facilities); - Do not ask the right questions; - Do not deal with the question of parking demand in the context of the subject site and parking availability in the nearby locality." (Respondent's written submissions, 17 July 2020, p 18) * The Court would prefer and accept the evidence of Mr McLaren who argues that the decision by the Applicant to provide no onsite parking and a reduced amount of onsite motorcycle parking does not affect student demand. Mr Seton references Mr McLaren's reasoning as follows: "… while nil provision for student parking may occur at the comparison sites identified by KH, this does not translate to nil parking demand as students are known to park either in unrestricted or time limited kerbside parking areas in nearby residential streets and walk to/from classes, depending on the extent of duration of stay on the university campus. Thus, the question not answered by KH relates to actual car (and motor bike) parking demand" (Exhibit 6) 1. 'the Transport for NSW advice': Mr Seton argues this ground should be rejected as within the correspondence the officer from Transport for NSW properly acknowledges that "parking rates are a matter for the local council" (Exhibit 9) and further the letter makes no reference to the provision of motorcycle parking. 2. 'excess Bicycle Parking': Mr Seton argues that this ground should not be accepted as no evidence has been provided that demonstrates a deficiency in the provision of motorcycle parking can be offset by the provision of extra bicycle parking spaces. Mr Seton notes that SEPP ARH maintains a distinction between the requirement for motorcycle parking and bicycle parking. 3. 'minimal traffic impact': Mr Seton argues that this ground is insufficient as it focuses on the benefits arising from the whole development rather than the variation. Further, he argues that the variation is not supported by any robust analysis that establishes motorcycle parking demand. 4. 'lesser impact': Mr Seton submits that this ground should be rejected as there is no acoustic evidence to support the assertion that there would be an acoustic problem if additional (compliant) motorcycle parking was provided onsite. 5. 'reduced open space and deep soil': Mr Seton argues this ground should not be accepted by the Court as any reduction in open space or deep soil to provide motorcycle parking is a function of the design of the proposed development. Further, he argues that "there are clearly opportunities to provide for additional motorcycle spaces without compromising the private open space or deep soil landscaping provided for the development'" (Respondent's written submissions, 17 July 2020, p 23). 6. 'objects of the EPA Act': On the final ground Mr Seton submits that the written request provides only an assertion that strict compliance with the motorcycle standard would hinder the orderly and economic use of the land. He argues that the written request fails to provide any reasoning or evidence to support the statement. 1. Finally, Mr Seton concludes that the Court could not be satisfied that the motorcycle parking variation request has adequately demonstrated that there are sufficient environmental planning grounds to justify the contravention of the development standard at cl 30(1)(h) of SEPP ARH. Mr Seton concludes that the application must be refused as the precondition for consent, the states of satisfaction under cl 4.6 of LEP 2012, are not met. The request does not establish sufficient environmental planning grounds 1. As noted earlier in the judgment, for the purposes of cl 4.6(3) of LEP 2012, environmental planning grounds need to be sufficient to justify the contravention of the development standard. In this case the motorcycle development standard at cl 30(1)(h) of SEPP ARH. 2. For the reasons that follow, I accept and adopt all of the submissions made by Mr Seton in relation to the sufficiency of the environmental planning grounds and their adequacy in justifying the contravention of the development standard at cl 30(1)(h) of SEPP ARH. I find that the written request does not establish sufficient environmental planning grounds, thereby not satisfying the requirements of cl 4.6(4)(a)(i) of LEP 2012. 3. The first ground detailed in the written request, and summarised at [141], relies on the conclusions of Mr Hollyoak, and the evidence summarised by Mr McEwen in his submissions at [143]. I have reviewed this evidence in considering the motorcycle parking variation request. This first ground asserts that that the development will firstly create a 'better planning outcome' by promoting the use of more sustainable transport (public transport, walking cycling). I am not persuaded that this ground ('better planning outcome') is an environmental planning ground nor that this environmental planning ground is sufficient to justify the contravention. My reasoning is as follows: * The application is for a boarding house development. Notwithstanding the imposition of the agreed condition of consent (refer to [40]) the development for which consent is sought is a boarding house. The particular occupancy is matter which can be given weight, but only in the context of the application of the relevant planning controls, in this case Division 3: Boarding houses of SEPP ARH. * The variation request does not establish that the 'better planning outcome' arises from the variation to the motorcycle parking, rather than as a consequence of the location of the subject site in proximity to UNSW and a range of public transport options. 1. Second ground 'evidence establishes no demand': The Aapplicant has submitted evidence that seeks to establish that comparative boarding houses utilised solely for student housing have limited provision and utilisation of motorcycle parking. I accept and adopt the submissions of Mr Seton in regard to the robustness and reliability of the data. I accept and prefer the evidence of Mr McLaren that "the Applicant's submission for the relaxation of the requirement for some 12 motorcycle spaces (or 48%) has not been adequately justified by robust data of motorcycle demand at similar sites, including generic boarding houses as distinct from 'student accommodation' which has no specific control or definition…" (Exhibit 6). 2. Taking the data at face value the analysis, at best, establishes a low provision of spaces at other student accommodation sites. It does not, in my view, establish that there is no demand. Neither does the written request establish that the variation to the motorcycle parking development standard gives rise to a benefit of promoting the use of more sustainable forms of transport. 3. I am not persuaded that the third ground 'the Transport for NSW advice', summarised at [141(3)] is an environmental ground, or is sufficient. I accept the submissions of Mr Seton that the letter makes no reference to the provision of motorcycle parking. Further, the provision of advice detailed in the letter does not, in my view, constitute an environmental planning grounds sufficient to override a control imposed by a statutory development standard. 4. In relation to the fourth ground 'excess bicycle parking' I accept that the Applicant proposes parking for bicycles in excess of the requirements of cl 30(1)(h) of SEPP ARH, as well as a number of shared use bicycles for the residents of the proposed boarding house. I note that the site is well located and serviced in relation to public transport. I accept and adopt the reasoning of Mr Seton that there is no argument put by the Applicant or evidence to support the assertion that this additional provision of bicycles displaces or offsets the demand for motorcycle spaces. Further I my view the way that this found is presented in the written request, in the absence of such reasoning, is as a benefit to the development. I am not persuaded that the 'excess bicycle parking' ground as argued is sufficient to justify the contravention of the standard. 5. In relation to grounds 5, 6 and 7 I accept and adopt the submissions of Mr Seton summarised at [149]. I am satisfied that these are properly described as benefits arising from the development (not the variation), are without evidentiary foundation and a function of the proposed development design respectively. 6. I accept that the final ground proffered namely that: "Strict compliance with the motorcycle parking requirement would hinder the attainment of the objectives of the Environmental Planning and Assessment Act 1979 (the Act) and would not result in the orderly and economic use and development of the land" may form an environmental planning ground. It is trite to say that providing additional space within the development for the provision of motorcycle spaces would likely increase cost through the requirement for the construction of additional area or result in a reduction of space within the development currently allocated for other purposes. It is on this basis I assume the request argues that the reduced number of spaces is a more orderly and economic use of the land. However, the assertion is unsubstantiated and not persuasive in the manner argued in the written request. I am not persuaded that this ground, as argued, is sufficient to justify the contravention of the standard. 7. Finally, it is appropriate to look at the environmental planning grounds as a holistic submission. Doing so I find I am not satisfied that any of the benefits outlined in the request (including those that I consider do not form environmental planning grounds) justify, or inform, the variation to the motorcycle space provision and therefore the contravention of the development standard. Nor are there any other grounds that are set out that justify the contravention of the standard. Conclusion 1. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) of LEP 2012 and consequently there is no power to grant consent to the development application which does not comply with the development standard at cl 30(1)(h) of SEPP ARH and the application must fail. Orders 1. The orders of the Court are: 1. The objection pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 (LEP 2012) to vary the Floor Space Ratio standard at cl 4.4 of LEP 2012 is not sustained. 2. The objection pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 to vary the motorcycle parking standard at cl 30(1)(h) of State Environmental Planning Policy (Affordable Rental Housing) 2009 is not sustained. 3. The appeal is dismissed. 4. Development application DA 272/2019 for demolition and construction of a boarding house at 22-28 Gardeners Road, Kingsford is refused. 5. The exhibits are returned with the exception of Exhibit 1, B, D and E. ………………………… D M Dickson Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2020