Land and Environment Court New South Wales Medium Neutral Citation: Georges v Georges River Council [2021] NSWLEC 1028 Hearing dates: 9-11 December 2020 Date of orders: 18 January 2021 Decision date: 18 January 2021 Jurisdiction: Class 1 Before: Morris AC Decision: The Court orders that: (1) The appeal is dismissed. (2) Development Application DA2018/0517 for demolition of existing structures and the construction of a five storey residential flat building over two level basement carparking with associated landscaping and associated site works at 2-4 Vaughan Street, Blakehurst is refused consent. (3) The exhibits, other than exhibits A, B and 4, are returned. Catchwords: DEVELOPMENT APPLICATION – residential flat building Legislation Cited: Environmental Planning and Assessment Act 1979 Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment Kogarah Local Environmental Plan 2012 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 Texts Cited: Apartment Design Guide Kogarah Development Control Plan 2013 National Construction Code Category: Principal judgment Parties: Gianni Georges (Applicant) Georges River Council (Respondent) Representation: Counsel: C Novak (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Applicant) HWL Ebsworth (Respondent) File Number(s): 2019/282526 Publication restriction: Nil Judgment 1. COMMISSIONER: Development Application DA2018/0517 was lodged with Georges River Council on 29 November 2018 seeking consent for demolition of existing structures and the construction of a residential flat building over basement carparking with associated landscaping and associated site works. The Council refused consent and the Applicant is appealing that decision pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The proposal 1. During the hearing, the Applicant sought and was granted leave to rely on amended plans subject to payment of the Council's costs thrown away pursuant to the provisions of s 8.15 of the EPA Act as agreed or assessed. Those plans form Exhibit B and were considered in part as time allowed, by the experts in Joint Conferencing however not fully and required further assessment throughout the hearing. 2. The plans propose the construction of a five storey residential flat building constructed over a two level basement. Access to the basement would be from a driveway off Stuart Lane with pedestrian access to this site from Vaughan Street. A car lift would link the two basement levels with a total of 35 car parking, 12 bicycle parking spaces, a bin room, storage areas and car wash bay provided within the basement area. 3. A total of 20 units are proposed, nine of which are two storey units. Those nine are on the ground floor and incorporate areas of private open space including the area within the front building setback to Vaughan Street. An area of communal open space is proposed along the southern boundary of the site in the vicinity of a large tree that overhangs the site from an adjoining property. The upper storey units incorporate balcony areas and access to the units on levels 2 and 3 is via a colonnade along the southern facade of the building with lift access provided to all units. Rooftop communal open space is provided on the upper floor adjacent and to the east of unit 20. The site and locality 1. The subject land is known as Nos 2 and 4 Vaughan Street, being Lots 22 and 21 in DP 15830. The site has dual frontage to Vaughan Street and Stuart Lane. 2. The site is irregular in shape, with a frontage of 26.8 metres to Vaughan St and a secondary, narrower frontage of 20.12 metres to Stuart Lane. The northern side boundary is 58.32 metres, the southern side boundary is 58.325 metres resulting in a total site area of 1327.6 square metres by Title or 1328.4 square metres by calculation as shown on the survey. 3. No. 2 Vaughan Street currently contains 1 storey dwelling house with a part second storey extension and attached carport/garage structure. There is a swimming pool in the rear yard and the lot is fenced along the rear boundary to the lane. No. 4 Vaughan Street contains a single storey dwelling house with an attached carport, a garden with retaining walls in the rear yard and a double garage located on Stuart Lane. 4. The site contains a number of trees and shrubs that will be removed. The Council contends that one of those trees, identified as Tree 1 in the Appendix to the Arborist's Joint Report, Exhibit 5, should be retained whereas the Applicant submits it should be removed. There is a large tree, known as Tree 6 located on a property to the south of the site. That tree is a large Corymbia citriodora and would be impacted by the proposed development. It is not agreed whether the extent of impact to the tree is acceptable and whether the development should be redesigned to reduce the impact. 5. The two lots comprising the site are the only lots that front Vaughan Street on the eastern side. The site adjoins four lots that front Stuart Street to the north and four lots fronting James Street to the south. This means the site adjoins 8 lots along the side boundaries, currently all containing dwelling houses. The Court was made aware that a development application proposing redevelopment of the James Street properties is currently before the Council for consideration. Tree 6 is located on that site with the development designed to allow its retention. 6. The site has a fall in the order of 1.5 metres from Vaughan Street to the rear lane and is located one block to the west of the Princes Highway, near the intersection of King Georges Road. The land to the east fronting the highway has a variety of commercial and retail uses and immediately to the east, across the lane is a recently completed high density, mixed use development. That land has a different zoning to the site and provides for a maximum building height of 21 metres and a maximum floorspace ratio (FSR) of 2.5:1. 7. The immediate locality of Vaughan Street is currently low density to the north, west and south. The block bounded by Stuart Lane, James Street, Vaughan Street and Stuart Street was zoned R2 low density residential prior to the introduction of Kogarah New City Plan. Kogarah City Plan was implemented via Kogarah Local Environmental Plan 2012 Amendment No.2, gazetted on 26 May 2017. The amendment up-zoned the block including the site to R3 Medium Density Residential. However, to the west, including the properties on the opposite side of Vaughan Street, the land remained within an R2 zone, characterised by single and two storey dwelling houses. Planning controls 1. The site is zoned R3 Medium Density Residential pursuant to the provisions of Kogarah Local Environmental Plan 2012 (LEP). Clause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R3 zone are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. Residential flat buildings are permitted with consent in the R3 zone and consent is required for demolition (cl 2.7 of the LEP). 2. Part 4 of the LEP contains Principal Development Standards. Those relevant are cl 4.1A Minimum lot sizes for multi dwelling housing, residential flat buildings and seniors housing. A minimum lot size of 1,000m2 is required and the area of the site exceeds that development standard. 3. Clause 4.3(2) provides for a maximum height of building of 15 metres on the site. The Council contends that the building, as proposed would not meet the development standard as it is not possible to construct the building and achieve the required floor to ceiling heights within that height control. 4. Clause 4.4(2) provides for a maximum FSR of 1.5:1 on the site. It is common ground that the amended plans satisfy that development standard. 5. Clause 6.1 Acid sulfate soils applies to the application and has been addressed through reports prepared by the Applicant. As the site is above RL 5 Australian Height Datum the Applicant is not required to prepare an acid sulfate soils management plan and the terms of the clause do not prevent consent being granted. 6. Clause 6.2 Earthworks requires consideration of the matters listed in the clause. The Applicant has submitted reports that it says address those requirements however the Council submits inadequate assessment of the impacts of the earthworks has been undertaken and, given the late submission of those details, it could not properly assess those reports. For that reason, the tender of the updated Geotechnical Report was refused. 7. Kogarah Development Control Plan 2013 (DCP) applies to the site with Parts A Introduction; B General Controls and C2 Medium Density Residential, particularly relevant to the application. 8. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP65) and the associated Apartment Design Guide (ADG) apply to the application and are particularly relevant to the contentions in the case. 9. State Environmental Planning Policy No 55—Remediation of Land, Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment are also relevant however its provisions are not in the contentions of this case. 10. The Council also submits the provisions of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure), in particular, clause 102 applies. The terms of that clause are: 102 Impact of road noise or vibration on non-road development (1) 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 child care facility. (2) Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this clause and published in the Gazette. (3) If the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded— (a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am, (b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time. (4) In this clause, freeway, tollway and transitway have the same meanings as they have in the Roads Act 1993. 1. The Applicant submits the site is not land in or adjacent to the road corridor designated 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, acknowledging that whilst the Princes Highway is in proximity to the site and would meet that threshold, it is not in or adjacent to that road. The proposed development before the Court has not been assessed in relation to the provisions of clause 102 of SEPP Infrastructure. 2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 also applies to the application and a BASIX certificate has been provided. The contentions 1. The contentions in the case are whether the development as proposed is an overdevelopment of the site; the building would be compliant with the development standard for building height; the development is consistent with the design principles of SEPP65 and the associated provisions of the ADG; the setbacks of the proposed building are appropriate; the amenity of communal open space and landscaping proposed is acceptable; the impacts to neighbouring properties and a tree within an adjacent site are acceptable; vehicle access to the site is safe and stormwater design adequately address flood impacts. The evidence 1. Expert evidence was heard from: Applicant Council Traffic Mr R Selim Mr M McCarthy Hydraulics Mr K Pokharel Mr D Milner Arboriculture Mr G Paroissien Mr C Kenworthy Urban Design Mr A Cadogan Ms G Morrish Town Planning Mr A Darroch Ms H Warton Traffic 1. The experts agree that the current layout of the driveway does not provide for adequate sightlines to pedestrians in accordance with the relevant Australian Standard and would either require modifications to meet this requirement or external traffic control devices to be implemented. An alternate option would be to somehow restrict the construction of fences on the adjoining development site to the south and in this regard the Applicant proposed a Deferred Commencement condition that would require obtaining an easement over that property to provide for the adequate sightlines. As an alternate, a condition of consent requiring that the driveway be relocated so as to be centrally located along the boundary with Stuart Lane so to achieve the minimum vehicle sight line requirements was proffered. 2. Both experts agreed that the only way that the driveway access could be constructed and be compliant with the Australian Standard would be to centralise its location. That could not be achieved without significant amendments to the building including the potential loss of the eastern ground floor unit to ensure that required height clearances to the basement ramp were maintained. 3. Both experts prefer the option of the car lift that is incorporated in the plans before the Court rather than ramped access to the lower basement level as the car lift provides for improved vehicle manoeuvring areas within the building. Whilst that is their preferred option, they say there is no reason that a ramp could not provide the required access. Plans of the alternate were prepared however do not form part of the application. Hydraulics 1. The experts agree that the location and design of the Onsite Detention Basin as proposed in the plans now before the Court is satisfactory. 2. They also agree that it will be necessary for the existing Council stormwater pipe to be reconstructed and enlarged and the size of easement increased. That pipe runs through the site along the south western boundary and then crosses onto the adjoining properties to the south. A drainage easement affects the site in the location of this pipe and also three of the four adjoining sites to the south and runs to a pit in Stuart Lane. 3. They disagree whether the amended drainage plans adequately address localised flooding and what is the flood level. Mr Milner says it is RL11.2 and Mr Pokharel says it is RL11.1 and is only a maximum of 150mm in depth. For that reason, Mr Pokharel says the floor levels of the proposed units, being above that level are satisfactory and it is not necessary to provide a freeboard of 500mm. 4. The drainage plans for the site include the amplification of the drainage pipes within the property from 300mm diameter to 675mm diameter with the works outside the site to be done at some later stage by the Council, in relation to upsteam works and the developer of the adjacent site to the south, in terms of the downstream work. Modelling was based in the upgrade of the whole pipeline. Mr Pokharel says no overland flow through the site in a 1 in 10 year ARI storm event will occur however is reliant on the Council doing the works within Vaughan Street. Mr Milner advised that the work required has not been identified in any current works program by the Council. No modelling of the impacts of only doing the work within the site had been undertaken and therefore, no assessment of the impact on adjoining properties or roadway could be made. 5. Mr Pokharel explained how the stormwater would be managed on site with the extent of retaining walls within the southern building setback detailed. Mr Milner was concerned that because the site is located at the sag point in Vaughan Street and the model does not address blockages or any storm event above the 1 in 10 year interval that it is likely there will be concentration of flows through the site. Arborists 1. The contentions addressed by these experts go to the impacts of the development on Trees 1 and 6. The application proposes the removal of Tree 1, a Eucapyptus crebra. That tree appears to be located on the western side of the boundary fence of 2 Vaughan Street however, the survey prepared for the Applicant shows the tree is located within the site. The development requires drainage works and landscaping within the Tree Protection Zone (TPZ) and pruning of the canopy of Tree 6, a tree that is located on adjoining land. No consent from the owner of the tree has been provided to allow that work. The earlier plans had proposed the construction of an at grade on-site detention basin (OSD) within the TPZ of Tree 6. This is no longer the case and the area is proposed to be landscaped and is identified as common open space on the plans now before the Court. Much of the discussion in the joint report, Exhibit 5 focused on the earlier situation. 2. Mr Kenworthy says the removal of Tree 1 and impacting Tree 6 does not achieve the objectives of the DCP which are to ensure the protection of existing trees which contribute to the visual amenity and environment of the City of Kogarah; to protect trees within and adjacent to development sites and to maximise healthy tree canopy coverage across the City of Kogarah. The siting or squeezing of a building through the canopies of two trees, the cutouts allocated for Tree 6 (TPZ) will create altered and halt the hydrological flows that this tree has been afforded for its lifetime and beyond. Its calculated TPZ and the proposed deep soil zone widths for future tree planting do not address the objectives of the DCP. 3. It is common ground that the design of the building would require the removal of Tree 1, a tree they say is in good health and structure. The experts agree that tree has a typical broad canopy for the species when occurring in an open growing environment with no canopy competition from adjoining trees. It is also agreed the tree is in good health with low to moderate levels of dieback in the outer canopy areas. 4. Mr Kenworthy says the removal of Tree 1 is not acceptable and redesign is required to allow for its retention. Mr Paroissien says there is not a compelling aboricultural reason to remove the tree and that its removal is only required to enable the proposed development works which is not an uncommon situation with trees on development sites. In regard to the tree's structure and form he notes this was impacted by severe recent pruning on the western side over the pool area of the adjoining property to the west and that pruning removed an estimated 25 to 30% of the tree's crown. Because of its proximity to the swimming pool in the adjoining property potential for future conflict will occur which he says is likely to result in a reduced useful life expectancy (ULE) due to that conflict potential. 5. There is no agreement on whether the development will have any adverse impacts on Tree 6. Mr Kenworthy says it is the best example of a Eucalyptus crebra in the whole local government area and the impacts of the works on the tree are unacceptable. 6. Mr Paroissien says the proposed works will impact on less than 10% of the identified TPZ of Tree 6 and therefore is a low level of impact and within the acceptable threshold for the tree. In terms of canopy impacts the tree's crown extends up to 6.8m into the site and the building is located 6.056m off the boundary and just within the outer edge of the lower mid canopy spread. Whilst allowance needs to be made for both scaffolding and pruning to junctions he considered the pruning can be managed within an acceptable threshold (between 5 to 10% of the tree's live crown area noting that some smaller, flexible branches may be able to be deflected during works). The upper crown areas are of less lateral spread and will not require pruning. He agrees the tree will require careful protection during works and recommends a number of conditions that he says should be imposed to ensure the protection of the tree. 7. Mr Kenworthy says the relocation of the proposed OSD basin is appropriate however, the proposed treatment of the area within the TPZ of Tree 6 presents new issues. He disagrees that the extent of impact is only 10% and says the proposed planting in the area is not appropriate and does not lend itself to use as common open space as neither active nor passive recreation use could occur. He says the area is likely to be used for the siting of site sheds and equipment during construction and this would adversely affect the health of the tree. Mr Paroissien says that the pot sizes of the proposed plants should be reduced and could be tubestock to minimise any disturbance to the tree. 8. Both experts agree that the proposed planting within the laneway setback was inappropriate and recommended alternative species. Urban Design and Planning 1. The planners address the contention of overdevelopment. Mr Darroch says the development is complaint in Gross Floor Area, height and provides compliant setbacks and building separation, deep soil, landscaping and communal open space. It demonstrates that the existing and future development would achieve compliant solar access (90%) and amenity and cross ventilation for 100% of the dwellings and having regard to recent approvals and recently constructed buildings in the locality is appropriate. 2. Ms Warton says the constraints of the long narrow site, the need to retain Trees 1 and 6, the drainage issues all have implications on the development's open space and deep soil planting. She says the location of the site opposite a R2 zone of lower density necessitates that the design takes consideration of an appropriate scale and street wall. Vaughan Street is only 11.8m wide, and the houses opposite in the R2 zone are single storey and single to part 2 storeys setback as later additions. The negative visual impact of the five storey building on the streetscape will be considerable and although some disparity of scale was always going to occur with the up-zoning of one side of the street, the height limit is a maximum and a three storey street wall, with the upper level and balcony set well back would have been a less intrusive outcome. Additional height may have been possible at the rear of the site where it is closer to the sites that front the Princes Highway and are zoned B2 with a higher height limit of 21m and an FSR of 2.5:1. The DCP has specific controls that were introduced to ensure consideration of appropriate scale of the street wall of high density buildings for buildings above 4 storeys set back 8m to balconies and greater setback required for narrow streets, such as applies to Vaughan St. The proposed development does not comply with these requirements. 3. Ms Morrish notes the requirements of the DCP and in particular clause 3 building setbacks and street interface which has the following objectives: "(a) To maintain and create a high level of amenity for neighbours with adequate access to sunlight, privacy and outlook. (b) To establish the appropriate spatial separation of the built form to the public domain and adjoining development. (c) To accommodate deep soil landscaping that will enable existing plantings to be retained and augmented with new canopy trees to assist with improving the visual impacts in and around the development. (d) To integrate new development with the desired setback and rhythm of built elements that comprise the character of the street. (e) To provide increased building separation where there is a transition to a lower density residential zone…" 1. Ms Morrish concurs with Ms Warton's interpretation of the DCP requirement for the streetwall heights and says the controls require a front setback of 5 metres up to a height of four storeys and then above 4 storeys a greater front setback of 8 metres to the street including balconies, terraces and balustrades which must all be behind the setback line. However as is the case with Vaughan Street, being a narrow street, the DCP states that this setback may need to be increased and based on the visual impact this can increase the set back by 2 or 3 metres. Because there is a zone change across the road which would justify a lower scale street wall to Vaughan Street in any event to achieve transition, given the dwelling typology in the R2 zone would be closer to a maximum 3 storey height, a 3 storey street wall would be a better outcome. Given this additional consideration at the very least the proposed development should comply with the controls for any level over 4 storeys. Whilst the current plans have amended the top floor so that there is now a 12 to 13.4 metres set back to Vaughan Street but a much lesser setback to the terraces serving that apartment, the setback to the balustrades and terraces towards Vaughan Street are only 7.5 to 9.5 metres which means that these elements will be likely to be visible from the street. To the laneway this set back to the terraces of the common open space is only 5.6 metres which is well below compliance. The front setbacks are eroded by the positioning of fire egress stairs within setbacks to both Stuart Lane and Vaughan Street. This reduces available landscape area and creates a poor interface with adjoining lots as well as opportunities for concealment and rubbish to collect as the stairs are open. Fire stairs should be contained within the building envelope and not imposed on the front setback. 2. Ms Morrish says the site is a mid block site and does not terminate a street block at the street edge. Mid block sites including those with a laneway interface to the rear of the lot, to satisfy is SEPP65 and good design principles should provide built form oriented to the primary street and laneway, divided by a landscape garden or courtyard area. The proposed development instead proposes a 49.5 metre long building that straddles the entire length of the site. This creates significant visual dominance to the lots looking onto these side boundaries, fronting James Street and Stuart Street and also creates major overshadowing to the rear gardens or the likely future common open space for the James Street lots. Additionally, such a long building for midblock severely limits opportunities for quality landscape continuity through the middle of the street block to provide habitat for fauna. It also results in significant site coverage by the basement which further reduces opportunities for deep soil and significant landscape. The area of communal open space provided at ground level is forced into a narrow area along the southern boundary. All of this space is overshadowed by the proposed building in mid winter and its position results in compromised amenity. 3. Such a long building also creates visual impacts to the streetscape with the side setbacks revealing the long unbroken length of the building form not characteristic of a midblock site and is not appropriate. Ms Morrish submits the consent applying to 1 to 5 James Street is a different scenario with different site constraints and notes that no consent has been issued for the adjoining site to the south which has frontage to James Street. 4. The experts agree that the numerical controls for landscaped areas and deep soil are met however disagree on the utility of the areas. The Council experts also highlight the areas of non-compliance with DCP controls, in particular, the narrow width of planters which they say will result in a substandard landscape outcome and the inadequacy of setbacks for the rooftop area and resultant privacy impacts, both aural and visual. The Applicant's experts say the areas are compliant with the ADG and provide sufficient privacy, particularly having regard to the location of Tree 6. 5. Mr Cadogan says the street wall height establishes a comfortable scale relationship with the lower density zone across Vaughan Street with the 5th floor set well back and visually recessive and presenting a suitably scaled and proportioned narrow frontage to the street. He notes the scale relationship is in accordance with the recently submitted application for the adjoining site and with a recent approval for land opposite that site and while he accepts that the context and details of the site are not identical to that of the proposed development it is nevertheless a relevant reference point as one of the first developments to demonstrate what realisation of the desired future character looks like in general terms. He does not accept Ms Morrish's opinion that a better outcome would be a 3 storey street wall which in his view would be less successful in transitioning from a likely 2-3 storeys opposite to five storeys on the subject site nor does he accept her assertion that there will be impacts on the streetscape arising from the side setbacks revealing the long unbroken length of building form because once the remainder of the block is redeveloped these views would be oblique. Whilst he does agree that the building length is substantial at around 48 metres he says that the length has been satisfactorily managed through the architectural articulation and acceptable in context of the desired future character and a satisfactory streetscape expression. The length is not out of keeping with a great many contemporary residential flat buildings recently constructed in Sydney noting that there are no controls that limit the length of the building in either the ADG or DCP. 6. The Council's experts argue the maximum building height under cl 4.3 of the LEP will be exceeded if the building is to comply with the minimum ceiling and minimum floor to floor provisions of the ADG. The floor to ceiling heights of the units on level 1 is only 2.4 metres, not 2.7 metres. The floor to floor height is 2.75 metres not 3.1 metres. The units have the living areas on the lower level and the bedrooms and bathrooms/ensuites on the upper level, accessed via internal stairs. The objective of the clause is that ceiling height achieves sufficient natural ventilation and daylight access and only anticipates a 2.4 metre height for the 2nd floor where its area does not exceed 50% of the apartment area. Ms Warton says bedrooms are a habitable room and the table in the design criteria of the clause indicates the minimum ceiling height is 2.7 metres. The Applicant's experts interpret the table as allowing the bedrooms in two storey apartments to have a ceiling height of only 2.4 metres. She says the subject apartments are two storey, but the area of the first floor exceeds 50% of the apartment area and whilst the current plans reduced that area the upper floor is still more than 50% of the ground floor. 7. Ms Morrish takes a similar view to that expressed by Ms Warton and says that to interpret the clause, reference should be made to the diagrams included in the ADG in particular figure 4C.1 and 4C.2. As the proposed development does not confine the area of lowered ceilings to non-habitable rooms the proposed development is not consistent with the diagrams or tables and will result in very poor amenity. She says that there is nowhere in the ADG that says a habitable room or area can have a floor to ceiling height of 2.4 metres and that the table simply suggests that a 2.4 metre floor to ceiling height could occur on a second level under particular circumstances such as where rooms overlook a void so that scenario may be acceptable as the rooms would share the sense of space provided by that void. 8. Whilst noting the current plans have been amended, Ms Morrish says that this has been in a tokenistic fashion to reduce the floor area available to the apartments' second level so that the Applicant can tick the box based on their interpretation of the table. This has been achieved by expanding the ground floor and reducing of the first floor areas of the units however has resulted in new issues as the ground level Units 1 and 2 no longer offer the 6 metre separation required by the ADG. It has also resulted in reduced amenity to a number of the units as floor areas previously forming part of bedrooms has been cut out to create small and, in some cases, deeply inset balconies. The effect is to reduce the amenity of these bedrooms by making access to light, air and outlook more remote. The inset balconies also now set over living areas below. 9. In regard to the 3.1 metre control for floor to floor height, Ms Morris says that the plans have been prepared to address the 15 metre height control through sinking some units below ground level, stepping the slabs repeatedly along the east west length of the building resulting in various ramps along the access corridor to absorb the level distances and with floor to floor heights of 3.05 metres on the majority of floors other than level 1 where a floor to floor height of 2.75 metres is proposed. The dimension for floor to ceiling heights suggest the 2.7 metres will be achieved on the majority of floors for habitable rooms other than level one. The ADG includes a floor to floor height dimension of 3.1 metres in its diagram dealing with service bulkheads illustrating floor to ceiling heights to achieve a 2.7 metre floor to ceiling height. 10. Ms Morrish notes the layout and party wall locations of the apartments vary between floors. Where wet areas occur in the apartment above another unit it is likely that a dropped bulkhead or lower ceiling height will be required to accommodate waste pipes. Where party walls do not align then it is possible that thicker structural zones may be required however she notes the advice in a letter from a structural engineer to the Applicant that states thickening of structure beyond a 200mm slab is not anticipated however she says where habitable rooms and spaces are located below wet areas particularly where floor wastes occur, it will not be possible to achieve 2.7 metres ceilings with either 3.05 metres or 3.1 metres floor to floor height. Where it occurs over the floor with only 2.4 metre floor to ceiling height (as is the case with level one) then the ceiling height could drop considerably lower than 2.4 metres if the waste pipes are reticulated over that room above the ceiling. She has assessed the plans and says that most ground floor 2 storey units have bathrooms that overlap with the living areas and it is unlikely that the 2.7 metre floor to ceiling height will be achieved in those locations. She is concerned the location of those wet areas could result in the need for greater allowance in the height of the buildings which would increase the overall height to above the maximum provided for in the LEP. 11. Mr Darroch disagrees and says the ADG anticipates a 2.4 metre floor to ceiling height for the 2nd floor where the upper floor of the apartment does not exceed 50% of the apartment area. He says all of the two storey apartments have been amended to ensure that each of the second floors do not exceed 50% of the apartment area. He also notes that all of units 1-9 orient directly north with three to four hours of unimpeded solar access to the living levels in midwinter and therefore he has no doubt the LEP building height development standard will be met. 12. Mr Cadogan concurs with Mr Darroch and also disagrees with the Council's experts that impacts to amenity resulting in the difference between ceilings at 2.7 and 2.4 metres will severely compromise amenity. He agrees that higher ceilings generally improves the sense of space in a room but observes a great many other factors that affect the perception of light, air and space in a room including but not limited to the relative size and position of windows, especially their height, the colours of the ceiling and walls, the amount of furnishing, the presence of picture rails or cornices and their relative heights and that with the exception of window size and location are properly left to the occupant of the dwelling to determine. He notes under the National Construction Code (BCA) a room achieves natural ventilation if it has a window opening to an external space with a ventilating area not less than 5% of the floor area of the room and achieves natural illumination by daylight if it has a window to outside space with a glass area of 10% of the area of the room so as far as the BCA is concerned the openable area and glazed area of the windows have a demonstratable effect on the daylight and natural ventilation of a room but the height of the ceiling is not mentioned. He also disagrees with the conclusions of Ms Warton and Ms Morrish in relation to floor to floor and floor to ceiling heights and in an analysis of services that would be required to the building says there are various construction techniques that can be employed and still comply with the building height development standard. 13. Ms Morrish says the form of the building and its rather awkward and forced planning creates a poor architectural outcome. The building lacks ordering principles for the apartment layouts, structural rhythm or the circulation zones which makes resolving the architecture and massing very difficult to achieve successfully. Extensive areas of blank walls on both long elevations, particularly to the south, brick elements are introduced to try and break up the building length but are unsuccessful other than towards the front of the building with the brick base partially introduced but petering out to the north. Overall, she does not consider it to be a successful composition or achieve a good design with a built form that has good proportions and balanced composition of elements nor does it respond to the existing or future contexts, particularly desirable elements as required under SEPP65. 14. Mr Cadogan disagrees and says the proposed architectural expression is satisfactory for the site and its context and that the finishes and materials will be in keeping with the emerging character of the higher density precinct in the blocks adjacent to the Princes highway. He does not consider the form of the building to be awkward and says it is a clear response to the site and the planning controls nor does he consider the alignment of the elevations to be random as they have a clear relationship to the site and solar orientation as well as expressing the different internal programme of the two storey ground floor apartments. The largest width of the blank wall is in the order of 6 metres on the northern elevation and the elevations are otherwise well articulated. Conclusion and findings 1. Having regard to the evidence, I find that the proposed development does not warrant consent. That is because the design and scale of the development has not paid adequate regard to the Design Principles of SEPP65 or the relevant provisions of the DCP, particularly with regard to street wall height. In addition, the failure to design a building that will not adversely impact on the structure of Tree 6, a magnificent tree, further demonstrates the overdevelopment of the site. The failure to provide safe vehicle access to the site is a further detrimental factor and the last minute attempt to address this through a deferred commencement condition, which has not been explored with the owners of the adjacent land, is not acceptable. Despite the application having been originally lodged in November 2018, more than two years prior to the hearing dates, the Applicant has not satisfactorily demonstrated the provisions of clause 6.2 Earthworks have been met. 2. In relation to the design of the building, I prefer the evidence of the Council's experts. The various amendments made to the plans through the assessment phase attempt to address areas of non-compliance with the provisions of SEPP65, the ADG or the DCP, rather than holistically address good design. I also accept the likelihood of the building breaching the development standard for building height or in the alternate providing reduced amenity through reduced floor to ceiling heights in those units where wet areas are located above living areas as is the case in units 1, 2, 4, 5, 6, 7, 8 and 9. I do not accept the Applicant's submission that these are fine details and are matters that are dealt with at construction certification stage and whilst it may be possible to construct the building within the envelope permitted under the controls of the LEP, this should be definite and not left to a later stage. 3. I also agree the attempt to ensure the floor space of the upper levels of the two storey apartments does not exceed 50% of the ground floor area has resulted in some poor amenity outcomes, in particular, the deep balcony to the south facing bedroom of unit 3 and the poor orientation of the window to the south facing bedroom in unit 5. The failure to provide the minimum setback to the northern boundary of units 1 and 2 further demonstrates the overdevelopment. 4. I also accept that the street wall height is excessive in the context of the site which, being opposite a low density residential area where buildings do not exceed two storeys, does not demonstrate an acceptable transition. The extent of balconies within the setback to the upper level again demonstrates the overdevelopment of the site. 5. Tree 6 is a magnificent specimen and is almost perfect in its form. Whilst the necessary pruning required to the tree may be within acceptable aboricultural practice, it will adversely impact that form and will, due to the proximity of the tree to the southern wall of the building, require constant pruning. Whilst I place no weight on the design of the proposed development to the south of the site due to the fact the Council has not determined the application at this stage, I do note the design has provided generous setbacks from the tree's canopy that would ensure its retention and form. The utility of the common open space area at ground level is poor, it is located on the southern side of the building so will receive a slither of sun between 9am and 10am midwinter. Other than providing a soft appearance, no passive or active use of the area could be made due to the extent of planting proposed. That planting may, on the evidence of the arborists, also impact on the health of Tree 6. 6. It is common ground that the proposed vehicle access to the site does not provide safe access or meet the requirements of the relevant Australian Standard for stopping distances. I cannot accept either option proffered by the Applicant in an attempt to address this issue. Firstly, the relocation of the driveway to a central location on the site could not occur without significant modification to the design of the building, most likely the deletion of the rear unit and, for the reasons expressed by all of the planning and urban design experts, I do not consider the resultant streetscape of the eastern elevation would be acceptable. The option of acquiring an easement over the adjoining development site to the south has not been explored but was rather a last-minute attempt by the Applicant to address the unacceptability of the current design. As no assessment of the alternate can be made, it is not a matter that could be left to another time. For conditions of consent to be imposed they must have certainty and not require further assessment. Therefore, the proposed deferred commencement condition is not acceptable. 7. Whilst I am satisfied that ultimately, the proposed stormwater design would be appropriate, the design is reliant on works being carried out to the existing pipeline both upstream and downstream of the site. It is not known when this work will occur and until such time that it does, the design has not modelled the impact of the amplification of the pipeline only within the site. For that reason, I am not satisfied that the development will not result in any adverse flooding impacts in the short term. 8. The Applicant has failed to address the provisions of clause 6.2 of the LEP and therefore, I cannot consider those matters raised in subclause (3) and form a positive state of satisfaction that the terms of the clause are met. 9. In relation to the provisions of SEPP Infrastructure, I accept the Applicant's submission that the terms of clause 102 do not apply to the site as it is not land in or adjacent to the Princes Highway. The site is separated from the Highway by the land zoned B2 Local Centre that fronts that road and is bound to the west by Stuart Lane and then Stuart Lane itself. 10. Despite that fact, the site view demonstrated that the site is subject to traffic noise from the road and it would be beneficial to take that fact into account in the design of the building. The original acoustic report undertaken in 2018 may have been sufficient however I am unsure whether the changes made to the building since that time affect the conclusions drawn. 11. For these reasons consent should not be granted. 12. The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA2018/0517 for demolition of existing structures and the construction of a five storey residential flat building over two level basement carparking with associated landscaping and associated site works at 2-4 Vaughan Street, Blakehurst is refused consent. 3. The exhibits, other than exhibits A, B and 4, are returned. ………………………. Sue Morris Acting 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: 18 January 2021