Land and Environment Court New South Wales Medium Neutral Citation: Jaks Construction Services Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1000 Hearing dates: 1 and 2 December 2020 Date of orders: 4 January 2021 Decision date: 04 January 2021 Jurisdiction: Class 1 Before: Dickson C Decision: The orders of the Court are: (1) The Applicant is granted leave to amend their development application and to rely on the stormwater concept plans prepared by TAA Consulting Engineers for the site, dated 7 December 2020 and marked Revision C. (2) The appeal is upheld. (3) Consent is granted to Development Application No. DA212/2018 for demolition of existing structures and construction of a five-storey mixed use development (with communal open space situated on the sixth floor) comprising 23 residential apartments, two commercial premises and basement parking at Lots 3 and 4, DP 9055, with a street address of 287-289 Canterbury Road, Canterbury subject to conditions in Annexure A. (4) The exhibits are returned with the exception of Exhibits A, B, 1 and 3. Catchwords: DEVELOPMENT APPLICATION – mixed use development – Canterbury Road frontage – variation to minimum lot width control – desired future character – whether the development is acceptable on merit – appeal upheld Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Cases Cited: FFS Canterbury Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1145 Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Texts Cited: Apartment Design Guide Canterbury Development Control Plan 2012 New South Wales, Development Near Rail Corridors and Busy Roads – Interim Guideline (2008) Category: Principal judgment Parties: Jaks Construction Services Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: T March (Applicant) S Kondilios (Solicitor) (Respondent) Solicitors: G&S Law Group Pty Ltd (Applicant) Hall & Willcox Lawyers (Respondent) File Number(s): 2018/381115 Publication restriction: No Judgment 1. COMMISSIONER: The Applicant, Jaks Construction Services Pty Ltd, appeals to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act) following the deemed refusal of its development application by Canterbury-Bankstown Council. Prior to the hearing, the development application was amended by the Applicant with leave of the Court. Consent is now sought for demolition of existing structures, construction and strata subdivision of a 5-storey mixed use development (with communal open space situated on the sixth floor) comprising 23 residential apartments, two commercial premises and basement parking. The development is proposed at 287-289 Canterbury Road, Canterbury. The site has rear frontage to Clunes Lane. 2. Notwithstanding the amendments to the development application, the Respondent maintains that the development warrants refusal on a single ground, which it argues is determinative of the appeal. The Respondent argues that due to the development including a single lift, the design includes and relies upon a substantial built form component connecting the part of the building fronting Canterbury Road with that fronting Clunes Lane. This connection, they argue, adds substantially to the bulk and scale of the development, and negates the desired built form of the locality which is characterised by a separation between the front and rear components of the proposed building with a corridor formed internally to the site. (Exhibit 3) 3. Following consideration of the evidence presented and submissions of the parties I have determined that the development warrants approval. My reasoning for these findings is detailed in the following judgment. As a result of the above the appeal is upheld and the development application is approved. Jurisdictional preconditions to the grant of consent 1. Before dealing with the merit issue raised by the Respondent, in support of the refusal of the development application, it is necessary to demonstrate that the other jurisdictional preconditions to the Court having power to grant consent to the proposed development have been met. The Council accepted that these other jurisdictional preconditions can be met, but noted that the Court, exercising the functions of the consent authority on the appeal, needs to be satisfied itself that the preconditions have been met. I have summarised the satisfaction of these preconditions in the following. 2. Clause 2A(1) of Schedule 1 to the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) requires a development application for any BASIX affected development to be accompanied by a BASIX certificate or BASIX certificates for the development. The proposed development is a BASIX affected development as defined in cl 3(1) of the EPA Regulation. A BASIX certificate dated 2 December 2020 forms part of the documents proposed to be approved in the agreed conditions. Further, a condition of consent will require fulfilment of the commitments listed in each BASIX certificate for the development, as required by cl 97A of the EPA Regulation. 3. Pursuant to cl 49 of the EPA Regulation, the development application is made with the consent of the owner of the land. (Exhibit B) 4. As required by cl 77 of the EPA Regulation the development application was notified by Canterbury-Bankstown Council. Pursuant to s 4.15(1)(e) of the EPA Act I have given consideration to the submissions received in determining the development application. 5. The application form indicates that the Applicant has not elected for the application to be Integrated development. 6. Clause 102 of State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) imposes preconditions to the determination of a development application by the grant of consent to certain types of development adjacent to certain types of roads with high traffic volumes. Clause 102(1) of the Infrastructure SEPP provides: This clause applies to development for any of the following purposes that is on land in or adjacent to the road corridor for a freeway, a tollway or a transitway or any other road with an annual average daily traffic volume of more than 20,000 vehicles (based on the traffic volume data published on the website of RMS) and that the consent authority considers is likely to be adversely affected by road noise or vibration— (a) residential accommodation, (b) a place of public worship, (c) a hospital, (d) an educational establishment or centre-based childcare facility. 1. The subject site has frontage to Canterbury Road which, by reference to the relevant traffic volume data, has a traffic volume of more than 20,000 vehicles per day. Clause 102 of Infrastructure SEPP applies to the development. 2. Clause 102 of Infrastructure SEPP imposes two requirements to be met by a development application for the residential accommodation. First, the consent authority, must take into consideration any guidelines that are issued by the Secretary for the purposes of the clause and published in the Gazette: cl 102(2). That guideline is the publication "Development Near Rail Corridors and Busy Roads – Interim Guidelines". The proposed development complies with the noise criteria in these guidelines, as established in the Acoustic Assessment by Acoustic Logic Consultancy Pty Ltd dated 22 March 2018. 3. Secondly, the consent authority must be satisfied, prior to the grant of consent, that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded: 1. in any bedroom in the residential accommodation—35 dB(A) at any time between 10pm and 7am, 2. anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time. 1. This criterion is addressed in the Acoustic Assessment and, subject to compliance with the report's recommendations, is demonstrated to be achievable. Compliance with the recommendations of the Acoustic Assessment is required by Condition 18. 2. Clause 104: Traffic Generating development of the Infrastructure SEPP applies as the development falls with the forms of development listed at Schedule 3 of the instrument. A referral to Transport for NSW is required. A referral response was received on 26 June 2018 raising no objection to the development application, subject to the imposition of specified conditions. (Exhibit 9). Those conditions have been incorporated in the agreed conditions of consent. 3. Further, consistent with cl 104(3)(b) of Infrastructure SEPP I am satisfied that the accessibility of the site, and any potential traffic safety, road congestion and parking implications for the proposed development will be acceptable. 4. As required by cl 7(1) of the State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. In determining the application, I have given consideration to the Detailed Site Investigation prepared by Canopy Enterprises in August 2019 (Exhibit D). That report concludes that, subject to implementation of its recommendations, the site is suitable for the proposed use of high-density residential accommodation. Compliance with the recommendations of the Detailed Site Investigation is mandated by condition 20. I am satisfied that the site is considered to be suitable for the proposed development. 5. The proposed development is a residential apartment development. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) applies to the development. The application is accompanied by a design verification statement dated 2 December 2020, as required by cl 50(1A) of the EPA Regulation. 6. The site is zoned B5 Business Development under Canterbury Local Environmental Plan 2012 (LEP 2012). Commercial premises are permissible with consent. Clause 2.5(1)(a) of LEP 2012 applies and makes development on the subject site permissible as referred to in Schedule 1 of LEP 2012. That schedule states in part: "pursuant to Schedule 1 of the Canterbury LEP 2012, Land identified as 'A' on the Key Sites Map may permit development for the purposes of residential accommodation bit only as part of a mixed-use development". The subject site is so identified on the Key Sites Map. The effect of cl 2.5 and Schedule 1 is that residential apartments are permissible with consent as part of a mixed-use development. Consent is sought for demolition: cl. 2.7 LEP 2012. 7. I have had regard to the objectives of the zone in determining the application: cl. 2.3(2) LEP 2012. The objectives of the B5 Business Development zone are: • To enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and that support the vitality of, centres. • To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design. • To support urban renewal that encourages an increased use of public transport, walking and cycling. • To encourage employment opportunities on Canterbury Road and in accessible locations. 1. The proposed development complies with the principal development standards in Part 4 of LEP 2012. 2. The subject site is within the vicinity of a heritage item, at 293 Canterbury Road, known as 'Inter-war shops with dwelling above'. The development application is supported by a statement of heritage impact. In determining the application, I have considered the effect of the proposed development on the heritage significance of the item. I accept the conclusion of the statement of heritage impact that the proposed development will not have a detrimental impact on the significance of this item. 3. The site is mapped as having Class 5 Acid Sulphate Soils and is within 500m of another soil class. Clause 6.1 of LEP 2012 applies. At the request of the Court additional information was provided by the Applicant, with the consent of the Respondent, that clarifies that the requirements of cl 6.(3) of LEP 2012 are met. 4. Clause 6.2 'Earthworks' of LEP 2012 applies to the site. In assessing the proposed development, I have taken into consideration the matters listed at cl 6.2(3) of LEP 2012. 5. The development application is accompanied by Stormwater Design Plans (Exhibit G). Consistent with the directions of the Court and with the consent of the Respondent, final stormwater design plans were provided by the Applicant after the hearing which relocated the onsite detention tank (OSD) to be consistent with the requirements of Council's engineer. Whilst not objecting to the stormwater plans the Respondent, by email, raises some concern regarding the location of the fire hydrant and Ausgrid substation in the Canterbury Road frontage. I am satisfied that the development is designed to meet the requirements of cl 6.4(3) of LEP 2012. 6. Clause 6.6 of LEP 2012 provides: Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been [made] to make them available when required— (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable road access. 1. No issue is raised by the Council in relation to the provision of the essential services listed at cl 6.6 of LEP 2012. I note that the proposed vehicular entry and exit to the development is proposed off Clunes Lane. Further amendments to the stormwater design were agreed between the parties during the hearing of the matter and are reflected in the agreed conditions of consent. I am satisfied that the services in cl 6.5(1) of LEP 2012 that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required. 2. I note that consistent with s 7.7(3) of the EPA Act, condition 1 of the proposed conditions of consent requires the Applicant to enter into a planning agreement with the Council in relation to the proposed development. That requirement is consistent with the offer made by the Applicant by letter of 28 June 2018. The subject of the planning agreement is the dedication of 3m of the subject site to facilitate the widening of Clunes Lane. 3. The relevant preconditions being met, it is appropriate to move to the merit issue of whether development consent ought to be granted to the proposed development. Is the building form proposed acceptable? 1. The primary issue contended by the Council is the compatibility of the applications approach to the development of the site with the desired future character (DFC) of the locality. In simple terms the Council argues that development on the site should be in two separate building forms, the first fronting Canterbury Road and the second Clunes Lane, leaving an uninterrupted break between as an external corridor. They argue that such a break would be consistent with the DFC of the locality. 2. A secondary issue arising from the planning expert evidence is whether a future redevelopment of the adjoining site (291 Canterbury Road) will impact the solar amenity of the proposed apartments. 3. Mr Kondilios confirms that the remaining contentions are not pressed by the Council. The Locality 1. To give context to the discussion of whether the proposed development is consistent with the DFC, it is appropriate to detail the current form and characteristics of the locality. The site, and the adjoining sites fronting Canterbury Road, are zoned B5 Business Development. To the north of the site, across Clunes Lane, the land is zoned R3 Medium Density Residential. 2. To the east of the site, 285 Canterbury Road, has the benefit of a consent for redevelopment as a mixed-use development with ground floor commercial and upper level boarding rooms. Relevantly this approval has two discrete building forms respectively fronting Canterbury Road and Clunes Lane with separate circulation and servicing which leaves an uninterrupted break between the building forms as an external corridor. 3. The following is an extract of the first-floor plan of the approved development at 285 Canterbury Road, highlighting the built form break: 1. Further to the east, 277-283 Canterbury Road has been redeveloped with a similar approach, two building forms separated by an external corridor, which can be seen in the following aerial photo: Figure 1: Existing locality with the location of the contested built form break highlighted 1. More distant from the subject site to the east is three adjoining residential flat buildings located at 231-235, 237-241, and 243-249 Canterbury Road. These developments adopt a similar built form separation between the front and rear building forms. 2. To the west of the subject site is an older style shop top housing building that is listed as a local heritage item in LEP 2012. 3. To the south of the site, across Canterbury Road, are large four, six and eight storey mixed use developments of varied forms and architectural style. The Relevant Controls 1. The proposed development is, in part, a residential apartment development. SEPP 65 requires consideration and demonstration of the design quality of the development. First, for consideration, cl 28(2) requires: In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide. 1. Second, cl 30(2) of SEPP 65 requires: Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria. 1. The Council argues that the development application is inconsistent with the following design quality principles in SEPP 65: Principle 1: Context and neighbourhood character Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions. Responding to context involves identifying the desirable elements of an area's existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood. Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change. Principle 2: Built form and scale Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings. Good design also achieves an appropriate built form for a site and the building's purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. … Principle 6: Amenity Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident well being. Good amenity combines appropriate room dimensions and shapes, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas and ease of access for all age groups and degrees of mobility. 1. Further, the Council argues that the proposed development is inconsistent with the following objectives and design guidance contained in the Apartment Design Guide (ADG): "Objective 4A-1 To optimise the number of apartments receiving sunlight to habitable rooms, primary windows and private open space. Design criteria 1. Living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9 am and 3 pm at mid winter in the Sydney Metropolitan Area and in the Newcastle and Wollongong local government areas … Objective 3F-1 Adequate building separation distances are shared equitably between neighbouring sites, to achieve reasonable levels of external and internal visual privacy Design criteria 1. Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows: …" Expert Evidence 1. The Court was assisted by town planning experts, Mr Eugene Sarich for the Applicant and Mr Stuart McDonald for the Respondent. Their joint town planning report was tendered as Exhibit 4 in the proceedings. In addition to their joint report the planning experts were called for cross examination. 2. Mr McDonald's evidence on the compatibility of the application with the DFC of the locality, and specifically that the building should adopt a form consistent with the adjoining sites, can be summarised as follows: 1. Consolidation of the subject site with the adjoining property at 285 Canterbury Road would assist in providing a large site, more suitable for a residential flat building (Exhibit 4). Mr McDonald argues that such a consolidation would also assist in achieving "a satisfactory separation and levels of amenity between the two (2) distinctive built form components on the site – the Canterbury Road frontage (the front component) and the Clunes Lane frontage (the rear component)" (Exhibit 4). 2. That in the proposed development the separation between the two building forms on the site is compromised by the inclusion of a "substantial built form through the centre of the site in the otherwise required separation 'gap' between the front and rear components" (Exhibit 4). Mr McDonald notes that this central built form contains the vertical circulation for the development (lift core and fire stairs). 3. That the location of the vertical circulation in the centre of the site results in a prominent structure within the relatively narrow site. Further, the central built form has an internal amenity impact on the amenity of the eight units facing Canterbury Road that have their balconies facing the internal space. It is Mr McDonald's evidence that the amenity impact arises from the compromised outlook and the reduction in solar access to these balconies. He argues that both of these impacts could be avoided by a redesign that provided separate vertical circulation within each of the building blocks, and the resultant deletion of the central vertical circulation. 4. Further, that any future development of 291 Canterbury Road, in a form with two building blocks and a built form break, may impact further on the solar access and amenity of the eight units facing Canterbury Road that have balconies facing the internal space. Mr McDonald states: "The result will be that the already compromised apartments in the front component, with their only outlook to the internal space within the site, will be substantially overshadowed in the afternoon" (Exhibit 5). Mr McDonald concludes: "Development of the site adjoining will therefore result in the development not achieving the ADG design criteria as well as some of those impacted apartments that could, based on the applicant's diagrams, receive some small amount of sun in the mid-afternoon, receiving no sun at all." (Exhibit 5) 1. That the proposed design is inconsistent with the intent of providing building separation, is inconsistent with the design approach taken on similar sites along Canterbury Road and is inconsistent with the recently built and approved built form character of the locality (Exhibit 4). 2. The development proposed for the site would be a departure from the built form that has been built, is approved and expected on Canterbury Road. 1. On the proceeding basis Mr McDonald argues that the Court should refuse consent to the proposed development application. 2. In the alternative, it is Mr Sarich's evidence that the application is worthy of consent. In relation to the contentions raised by the Council his evidence can be summarised as: 1. The width of the site is sufficient to develop the site in compliance with the relevant development controls. When assessed against SEPP 65 the "building is see[n] to achieve a high level of compliance with amenity principles and architectural design quality. This is irrespective of the site area and site width. The objectives of Part C4.2.1.1 Minimum Lot sizes and Frontage are met by the proposal" (Exhibit 4). 2. That 73.9% of the apartments are cross ventilated and the living rooms and private open spaces of 70% of the apartments receive a minimum of two hours direct sunlight between 9am and 3pm mid-winter. Further, the two building forms on the site achieve a 12m building separation and the occupants will have access to a rooftop communal open space. The development complies with the requirements of the ADG. 3. That the use of centralised vertical circulation for the development is efficient. Further, its size has been minimised (4.596m in width). 4. Whilst not providing complete separation, the design provides a substantial physical break in the built form mid-block between the building forms on the site (Exhibit 4). 5. The design is consistent with the general pattern of development established by the adjoining development at Canterbury Road and 277-283 Canterbury Road. The design of the centralised vertical circulation is not an element that will be apparent or dominant to building occupants or in the streetscape. A spatial separation between the building forms, consistent with the adjoining properties is provided. 6. That the proposed building, when viewed from Canterbury Road and Clunes Lane "… will sit comfortably within the local context characterised by five (5) and six (6) storey mixed (sic) use buildings, many of which are of a substantially larger bulk and scale and often of lesser architectural quality. By contrast, the subject design does not utilise the full available building height and has a compliant floor space ratio. The height is one (1) storey less than the adjoining approved development at 285 Canterbury Road" (Exhibit 4). Mr Sarich concludes that the design responds appropriately to the DFC of the area. 1. Mr Sarich disagrees with Mr McDonald's evidence that it is reasonable to assume that any future development on 291 Canterbury Road will be a multi-storey development. His reasoning is based on the fact the adjoining site (293 Canterbury Road) contains a local heritage item and that "…(i)t can be reasonably expected that Council would require the impacts of any future development to be suitably controlled in respect of solar access to the subject development" (Exhibit 4). 2. In response to Mr McDonald's evidence in relation to impacts on amenity, Mr Sarich argues: "The amended plans demonstrate that resident amenity is achieved through compliance with the relevant controls for solar access, cross ventilation, parking and apartment floor layouts. I note that: - The internal separation distance between the front part of the development and the rear part is 12m. Any habitable room windows opposite balconies are provided with either a high sill height or privacy screens. - The upper level communal open space achieves external privacy through the provision of a perimeter planting area. Users of the area are precluded from overlooking to the north. - The amended plans show the outline of the approved development at 285 Canterbury Road. No privacy conflicts arise in respect of 285 Canterbury Road." (Exhibit 4) 1. In submissions Mr Kondilios, Counsel for the Respondent, confirmed that the Council no longer presses the non-compliance of the site width control in Canterbury Development Control Plan (DCP 2012) on the basis of the amended plans. 2. Mr Kondilios adopts the evidence of Mr McDonald and submits that his evidence on the impact of the centralised vertical circulation and the compatibility of the proposed development with the existing built form in the locality and the streetscape and should be preferred. He urges the Court to refuse the development on these bases. 3. Further, Mr Kondilios submits that the design quality principles under SEPP 65 direct that good design responds to and contributes to its context (Design Quality Principle 1). In the specific circumstances of the case he argues that the DFC is evidenced by the town planning decisions taken by the Council and the Court, responsive to the specific hostile environment of Canterbury Road. 4. In the alternative Mr March, Counsel for the Applicant, mphasised to the Court the relevance of the objectives of the B5 Business Development zone, refer paragraph [19]. Specifically, the objectives to "…create an attractive streetscape supported by buildings with a high standard of design", "…support urban renewal…' and '… encourage employment opportunities on Canterbury Road…". Mr March argues that these objectives support the intent of the Council to drive urban renewal on Canterbury Road by increasing density and encouraging redevelopment of sites. It is Mr March's submission that this intent is met by the proposed development. 5. In response to Mr McDonald's evidence, Mr March argues that the centralised vertical circulation element will not be observable from Canterbury Road or Clunes Lane. Further, emphasising that visibility is not an impact he submits there is no evidence of a detrimental impact on the streetscape arising from the centralised vertical circulation element. 6. In response to the assertion by the Respondent that the proposed development is not compatible with, or reflective of, the DFC Mr March argues: 1. There is no relevant statement of DFC in either LEP 2012 or DCP 2012. 2. The proposed development is compliant with the key built form controls, which control the siting, height and density of development. 3. There is no planning control that mandates, or indicates the desirability of, a central corridor such as is sought by the Respondent. 4. A central break, of the separation dimension required by the ADG, is provided for in the development. 1. Finally, Mr March submits that the provision of a central break in the adjoining developments is reflective of happenstance, not of intention by the Council or in response to the planning controls. He concludes by arguing that the standard called for in SEPP 65, and the design quality principles is 'good design', not excellent design or amenity, nor the best outcome for the site. He submits that the proposed development is an acceptable form of development which following merit assessment warrants approval by the Court. Findings 1. The relevant planning controls applicable to the subject site do not provide a development standard that requires the provision of an uninterrupted break to be provided between built form on the subject site. Further, DCP 2012 does not incorporate a descriptive statement of DFC of built form in the locality in which the subject site is located. 2. Further, there is no stated objective or control that requires new development to be consistent in form with the existing character of the locality. 3. It is acknowledged by the experts, and the parties in their submissions, that the locality is one undergoing redevelopment in response to changes to the development standards and the strategic intent of the Council to encourage urban renewal. In this context the DFC is more relevant than the existing character. 4. I accept that factually a number of new developments in proximity to the site on the northern side of Canterbury Road have approached the development of their properties with a similar built form. Namely, that a component of the built form, fronting Canterbury Road has an orientation of living areas to a central space. This design approach allows for spaces to be orientated away from the road frontage and to capture northern light. Given the depth of the sites a secondary building form has, typically, been located fronting Clunes Lane. The question before the Court in the merit assessment of the application is the weight which should be given to the conformity with this site planning approach in the determination of the merit of the proposed development. 5. In my view the lack of planning controls mandating a requirement to have an uninterrupted break between built forms affect the weight that can be given this factor in the merit assessment of the application. 6. Factually, the following details of the proposed development are relevant: * The height of the proposed development will read in the streetscape as being a storey lower than the approved boarding house located immediately adjacent the subject site. * The proposed development adopts a two building form and provides a separation between the forms in the centre of the site of some 12m for all but 4m of the site width. * The separation proposed between the built form aligns with the separations both approved or constructed on the adjoining sites (refer to [34]. 1. In considering the compatibility of the proposed development with surrounding development the Court regularly applies the principles established in Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191, [22]-[31] (Project Venture). In these proceedings the relevant principles are: "22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. … 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character." 1. Applying the principle to the proposed development and giving weight to the expert evidence I am satisfied that the proposed development is compatible with the surrounding development. Further, I am satisfied that a complete separation between the building form is not required. My reasoning is as follows: 1. I am not persuaded by Mr McDonald's evidence that lot consolidation (and therefore having a larger site area) is necessarily related to the architectural decisions of locating the vertical circulation in a proposed site design. 2. Relevantly I note that the property at 285 Canterbury Road, with which Mr McDonald argues the site should be consolidated, has the benefit of an existing consent: FFS Canterbury Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1145. 3. Whilst factually the provision of a central vertical circulation element may reduce the scope of the outlook from the balconies of the units oriented to the centre of the site, such an impact is not in my view sufficiently adverse to be determinative. 4. The proposed development complies with the requirements of the ADG. In relation to building separation distances, I am satisfied that the balconies have adequate access to light and whilst part of their view will include the external walls of the vertical circulation this part of the building is not inherently an unattractive element. 5. Mr McDonald does not argue that the proposed development is not capable of existing in harmony with the existing and approved development. I am also so satisfied. 6. With the benefit of a site view I accept the evidence of Mr Sarich that the proposed building will sit comfortably within the site's context. 1. In considering the second component of the principle, I note that the development meets the requirements of the ADG that 70% of apartments receive a minimum of 2 hours direct sunlight between 9am and 3pm. I am not persuaded by Mr McDonald's evidence that future development of 291 Canterbury Road necessarily will reduce the solar access to the western units fronting Canterbury Road. Importantly, I am not persuaded that the proposed developments achievement of the 70%, two-hour, solar access standard of the ADG relies on the apartments likely to be impacted by a future development of 291 Canterbury Road (Exhibit F). 2. I am satisfied that the solar amenity of the proposed development is acceptable and meets the requirements of the ADG. 3. I am similarly satisfied that the proposed development meets the building separation requirements of the ADG and the apartments will have an appropriate outlook and privacy. 4. In conclusion, applying the principles in Project Venture I am satisfied that the proposed development contains the essential elements of the character of the urban environment and is compatible with the locality. Is a variation to the development controls in DCP 2012 warranted? 1. The development application seeks a variation to the frontage control in DCP 2012: Part D1.2.1 and the building height plane control: C7-9 of Part D1.3.4 of DCP 2012. Respectively those controls state: "D1.2.1 Minimum Frontage Objectives O1 To ensure efficient vehicular access to parking and servicing and reduce driveway crossings. O2 To facilitate efficient building envelopes that achieve optimum density. Controls … C2. Where redevelopment is proposed in the B5 zone, the minimum site frontage is 30m. … D1.3.4 Setbacks Objectives O1 To establish the desired spatial proportions of the street and define the street edge. O2 To minimise building size and bulk by setting back upper storeys. O3 To minimise amenity impacts on adjoining properties. O4 To encourage increased setbacks along Canterbury Road to provide for possible future implementation of street parking and assist in reducing traffic noise impacts. O5 To allow for flexible design and building articulation by permitting minor encroachments. Controls … On boundary with residential zone – rear setback C 7 Establish a 45o height plane projected at 6 m from the residential zone boundary. C 8 Provide minimum 6m setback to the residential zone boundary. C9 A two-storey limit on the boundary with residential zone applies. (Refer to Figure D1.2) … 1. Relevant to the consideration of the requested variation to these controls s 4.15(3A) of the EPA Act provides: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. 1. It was Mr McDonald's oral evidence that neither the height breach, nor the variation to the frontage control, of themselves, warrant refusal of the development application. 2. Further, in the joint planning report the experts note as an agreed comment that: "(t)he design of the front and rear facades of the subject DA is generally satisfactory and could be further addressed by the imposition of a suitable condition of development consent in the event of an approval" (Exhibit 4). Findings 1. I am satisfied that it is appropriate to vary the frontage control in DCP 2012: Part D1.2.1 and the building height plane control: C7-9 of Part D1.3.4 of DCP 2012 on the basis that the Applicant has provided a reasonable alternative solution that meets the relevant objectives of the controls: s 4.15(3A)(b) of the EPA Act. 2. Specifically, I am satisfied that the variation to the frontage control does not inhibit the achievement of the objective of facilitating efficient building envelopes that achieve optimum density. Further, the proposed development provides vehicular access and servicing from Clunes Lane, satisfying objective O1. 3. Further, I am satisfied that the proposed development will, despite the variation to the control at the upper level, assist in establishing the desirable spatial proportions in Clunes Lane and includes an appropriate upper level set back. There is no evidence before the Court that the variation to the building height plane control will result in any amenity impacts to the adjoining properties that would be inconsistent with the achievement of objective 3. Finally, I am satisfied that the variation proposed is consistent with the objective to allow for flexible design and building articulation by permitting minor encroachments. Conclusion 1. Pursuant to cl 28(2) of SEPP 65, I have considered the design verification statement and I am satisfied that the design quality of the proposal, when evaluated in accordance with the design quality principles (Schedule 1 to SEPP 65), is an appropriate response to the opportunities and constraints of the site and is acceptable. 2. Having carefully considered the joint expert report the submissions of the party, the public submissions, and such of the matters listed at s 4.15(1) of the EPA Act as are of relevance to the development the subject of the development application, I am satisfied that the amended proposal warrants approval. Orders 1. The orders of the Court are: 1. The Applicant is granted leave to amend their development application and to rely on the stormwater concept plans prepared by TAA Consulting Engineers for the site, dated 7 December 2020 and marked Revision C. 2. The appeal is upheld. 3. Consent is granted to Development Application No. DA212/2018 for demolition of existing structures and construction of a five-storey mixed use development (with communal open space situated on the sixth floor) comprising 23 residential apartments, two commercial premises and basement parking at Lots 3 and 4, DP 9055, with a street address of 287-289 Canterbury Road, Canterbury subject to conditions in Annexure A. 4. The exhibits are returned with the exception of Exhibits A, B, 1 and 3. ………………………… D M Dickson Commissioner of the Court Annexure A (276032, pdf) ********** 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: 04 January 2021