Land and Environment Court New South Wales Medium Neutral Citation: Tier Architects Pty Ltd v Burwood Council [2022] NSWLEC 1116 Hearing dates: 10-11 February 2022 Date of orders: 18 March 2022 Decision date: 18 March 2022 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [89]. Catchwords: DEVELOPMENT APPLICATION: Residential apartment development – residential flat building – Heritage conservation – whether adequate regard has been had to design quality principles – public submissions Legislation Cited: Burwood Local Environmental Plan 2012, 4.6, 5.10, 6.6, Sch 5 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 50, 55 Land and Environment Court Act 1979, s 39 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy No 65 - Design quality in Residential apartment development, cll 6A, 30 Texts Cited: Department of Planning, and Environment, Apartment Design Guide, July 2015 Burwood Development Control Plan Class 1 Development Appeals Category: Principal judgment Parties: Tier Architects Pty Ltd (Applicant) Burwood Council (Respondent) Representation: Counsel: A Pickles (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Conomos Legal (Solicitor) (Applicant) Marsdens Law Group (Respondent) File Number(s): 2021/123741 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Burwood Council of Development Application No 122.2020 (the DA) seeking consent for the construction of a six-storey residential flat building and associated landscaping at 18 Cooper Street, Strathfield (the site). 2. The Class 1 application (Exhibit J) states the DA comprises 58 units, ground level communal open space above two levels of basement car parking for 94 cars. Evolution of the appeal 1. On 10 November 2021, the Applicant amended the DA by Notice of Motion contained in amended architectural plans and other documents that may be summarised as follows: * Reducing the height of the proposed development, and calculating the Floor Space Ratio (FSR) to comply with the relevant controls; * Increasing setbacks to front, side and rear boundaries; * Revising the proposal to comply with the requirements of the Apartment Design Guide (ADG); * Revised arborist report, and tree retention plan. * Amendments to parking, waste management and stormwater. 1. As a result of the amended application, the Court made orders in accordance with short minutes of order on 9 December 2021 for the experts to confer, and for the joint report on heritage to be filed and served 20 January 2022, and the combined joint expert report of the planning/urban design experts to be filed and served 4 February 2022. 2. The joint report of the heritage experts was filed 28 January 2022 (Exhibit 5), with agreement that amendments incorporated into Issue F plans were acceptable in heritage terms. 3. The joint report of the combined planning/urban design experts was filed 2 February 2022 (Exhibit 6), and appended additional amendments in Drawings identified as Issue G. 4. On the eve of the hearing, the Applicant filed a Notice of Motion under the affidavit of Ms Alana Kovacic that sought leave to amend the application by relying on the following: 1. Amended architectural plans comprising plans identified as a mix of Revision F and G, prepared by Tier Architects. 2. BASIX Certificate No. 1114818M_03, prepared by EPA, dated 1 February 2022 3. Design Verification Statement prepared by Mr Nicholas Nasser (Arch Reg No. 9457). 4. Amended landscape plans, prepared by Paul Scrivener Landscape, dated 24 January 2022 5. Quantity Surveyor detailed cost report dated 24 January 2022. 1. The Respondent opposed the Notice of Motion on the grounds that insufficient time had been afforded for the Respondent to consider amendments that appear to exacerbate the environmental impact of the proposed development, because the amendments contained in the amended plans are not comprehensively described, and because the amendments are deserving of renotification in accordance with Section 7.2 of the Burwood Development Control Plan (BDCP). 2. The Court granted the Applicant leave on the basis that the amendments flowed from the conferencing of experts which, according to the experts, resolved the contentions identified by the Respondent. On the basis of this consensus, it was not unreasonable for the Applicant to seek from the Respondent clarification as to whether a conciliated outcome was likely, in the event of which a Notice of Motion was not required. This answers the Respondent's submission that the Applicant failed to seek leave within 10 days of the hearing in accordance with par 90 of the Court's Practice Note on Class 1 Development Appeals. 3. Furthermore, on the basis of the amendments listed by the Applicant and those amendments not listed but identified by the Respondent, the impact of the proposed development, such as the greater setbacks to the east and west, would appear to reduce, and not increase the environmental impact of the development from that formerly proposed, and in respect of those units identified by Mr Seton that appear to permit overlooking to neighbouring properties, the issues appear capable of resolution by condition. 4. Finally, in respect of the removal of mature pine trees from the Cooper Street frontage, the experts pay particular attention to this matter in their respective joint reports. 5. Accordingly, the Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Burwood Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending the development application No. DA 122.2020 filed with the Court by the amended plans and other documents contained in the Notice of Motion. 6. The Court also directed the Applicant to lodge the amended application on the NSW planning portal within 7 days of the date of this order and notify the Respondent after it has been lodged. 7. The Court directed that the heritage experts confer on those architectural plans identified as Revision G, consistent with the agreement of those experts at par 1.3 of the heritage joint expert report that any further amendment beyond Revision F should be further considered. 8. Leave was also granted to the Respondent to amend its contentions on the grounds that the Cooper Street frontage breaches the development standard at cl 6.6 of the Burwood Local Environmental Plan 2012 (BLEP) requiring development that is other than minor to be setback 6m from the front boundary. 9. Accordingly, I directed that the planning experts confer on the additional contention, and on the written request prepared by the Applicant's planning expert in accordance with cl 4.6 of the BLEP, and provide a short supplementary report by 10am on the second day of the hearing, later marked Exhibit 9. The site and its context 1. The site is located on the southern side of Cooper Street, with a rear frontage to Cowdrey Lane, around 150m from the northern entrance to the Burwood Railway Station. 2. The site is legally identified as Lot 1 in DP 339188, with a total area of 2,871.6m2. 3. The site is within a local area in which low density residential development predominates in the form of one- and two-storey dwelling houses. 4. To the west of the site, at 18A Cooper Street, is a two-storey dwelling identified in Sch 5 of the BLEP for its local heritage significance as '1950's house and garden'. 5. To the north of the site on Cooper Street, predominantly single storey dwellings contribute to two heritage conservation areas known as the Phillip Street Heritage Conservation Area, and the Mosley and Roberts Street Heritage Conservation Area (together, the 'heritage conservation areas'). 6. A single storey dwelling at the corner of Cooper Street and Roberts Street, identified as 9 Cooper Street, is also listed for its heritage significance. 7. To the east of the site, is a two-storey dwelling house at 14 Cooper Street. 8. The proceedings commenced onsite during which time the Court heard submissions from residents of the local area identified in Exhibit 1. Those submissions may be summarised here as follows: * Recent development in the vicinity of the subject site has resulted in traffic use and waste collection in Cowdrey Lane exceeding its capacity. * The bulk and scale of the proposed development is out character with the heritage values of the local area. * Relatedly, the height of the proposal permits views into the private open space of nearby properties at 7 and 9 Cooper Street which both have swimming pools used by children. * Townhouse development of 3-4 storeys in height is more appropriate to the area. * An excessive number of trees will be removed. Those trees proposed to be retained include species identified as weeds. 1. The Court, in the company of the parties and their experts, viewed the existing dwelling at 18 Cooper Street, and was taken to Cowdrey Lane, and to Cooper Lane to the west of the site. 2. At the invitation of a resident, and with the knowledge of the parties, the Court later drove past a multi dwelling development located at 25 Philip Street, considered by the resident an example of appropriate development in a heritage conservation area that presents to the street as a single storey development with rooms in the roof and basement carparking accessed via a two-way ramp. 3. The site is located within the R1 General Residential zone pursuant to the BLEP, in which residential flat buildings are permitted with consent, where consistent with the following objectives for development in the zone: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. It is relevant to record here that the site was subject to a Planning Proposal to amend the BLEP in 2014 that sought to rezone No s 2-18A Cooper Street from R2 Low Density Residential to R1 General Residential, with an increase in height and FSR controls. 2. While the Respondent did not support the planning proposal, Gateway Determination was received in December 2016, the planning proposal was exhibited from 6 June 2017 to 4 July 2017, and the BLEP was amended by Amendment No 16 on 17 January 2020. 3. The BDCP applies to the site at Section 1.3. Section 3.3.6 concerning the Cooper Street Precinct, Strathfield was added to the DCP on 15 November 2021 and applies to the proposal. Expert evidence 1. As the contentions in this matter relate to planning, urban design and heritage, the Court was assisted by the following experts in those disciplines: * Town planning: Mr Jeff Mead, for the Applicant, and Mr Gerard Turrisi, for the Respondent * Urban design: Mr Alan Cadogan, for the Applicant and Ms Gabrielle Morrish for the Respondent. * Heritage: Mr Stephen Davies, for the Applicant and Ms Lisa Trueman for the Respondent. 1. The respective experts are agreed that the amendments contained in the architectural plans at [7(1)] and later marked Exhibit A, resolve the contentions. The issues are distilled 1. Notwithstanding the agreement of the experts, to whom the Court cannot abdicate its role in determining the matters in dispute, Mr Seton, solicitor representing the Respondent, identified four contentions in closing that remain pressed: 1. Heritage conservation 2. Side setbacks and separation 3. Non-compliance with cl 6.6 of the BLEP 4. Public interest 1. As cl 6.6 of the BLEP is a development standard that requires the consent authority, or the Court exercising the functions and discretions of the Council on appeal, to form an opinion of satisfaction to enliven power to consider the grant of consent, I will consider this contention first, prior to an assessment of the merits of the proposal thereafter. The written request is considered 1. Responsive to the contention at [15], the Applicant relies upon a written request in accordance with cl 4.6 of the BLEP that seeks to justify the contravention of the development standard at cl 6.6 (Exhibit K) (the written request). 2. Clause 6.6 of the BLEP applies to the site by virtue of subcl (2)(g) in the following terms: (1) The objective of this clause is to protect the character of Cooper Street, Strathfield, including buildings of heritage significance. (2) This clause applies to the following land at Cooper Street, Strathfield— (a) Lot 1, DP 320999, (b) Lots 15–17 and 21–24, DP 2089, (c) Lot 1, DP 455342, (d) Lot 1, DP 1040940, (e) Lot 1, DP 911709, (f) Lot 1, DP 925133, (g) Lot 1, DP 339188, (h) Lots 1 and 2, DP 229007. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that— (a) there will be a minimum 6 metre setback from the frontage of Cooper Street, Strathfield, and (b) there will be a minimum 3 metre setback from the frontage of Cowdery Lane, Strathfield, and (c) the maximum height of any building within a 16 metre setback of the frontage of Cooper Street, Strathfield will not exceed 11 metres. (4) Subclause (3) does not apply to development on land that is of a minor nature only, if the consent authority is of the opinion that the carrying out of the development would be consistent with the objectives of the zone in which the land is situated. 1. The Applicant's primary position is that the portion of development that encroaches on the 6m setback required by cl 6.6(3)(a) of the BLEP benefits from the exemption provision at cl 6.6(4) of the BLEP as it is not more that minor, and is consistent with the objectives of development in the zone. 2. Mr Pickles SC, counsel for the Applicant, submits that the development contained within the 6m setback to Cooper Street is limited to private courtyards and communal open space that are defined by fencing and landscaping, which is a desired outcome of Section 3.3.6 of the BDCP which states: "P1 Primary setback to Cooper Street shall comply with provision with provision [sic] (3) (a) under Clause 6.6 of the BLEP 2012. P2 Ground level setback to Cooper Street should be occupied by a combination of private courtyards and communal space. Private courtyards can occupy up to 3 metres from the building line with the reminding [sic] distance to the boundary maintained by the strata management to achieve a consistent treatment and upkeep. P2 [sic] Private court yards to be enclosed by fencing with openable gates. Fencing can have a solid base up 600 mm with picket / railing style fence with a minimum of 1.2 up to 1.5 metres inclusive of the base. If additional privacy is required above 1.5m, this can be achieved with the use of shrubs or hedging. Picket / railing style fencing must have at least 50% transparency." 1. While the Applicant's submission at [38] may appear initially persuasive, a close read of the drawings indicates a number of screen fences within the 6m setback exceed the height of 1.5m and, between Units G.03 and G.04, exceeds a height of 2m, within 3m of the Cooper Street frontage. 2. As the drawings indicate four privacy screens of at least 1.8m in height, and one evidently in excess of 2m, I consider the development that is within 6m of the Cooper Street frontage to be more than minor, and so the exception at cl 6.6(4) of the BLEP does not apply. That said, it is that portion of the screens in excess of 1.5m that I consider to be more than minor, as an element above that height interferes with a person's sightline, as commonly applied and because low lying courtyards surrounded by low walls within a landscaped setting appear within the scope of the exception at cl 6.6(4) of the BLEP, to which Provision P1 of Section 3.3.6 of the BDCP refers. In these terms, I now consider the written request. 3. The written request asserts that compliance with the development standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding the non-compliance, for the reasons that follow: 1. The development is consistent with the objectives of the standard and the zone; 2. There are no additional significant adverse impacts arising from the proposed non-compliance; 3. Important planning goals are achieved notwithstanding the non-compliance. 1. Next, the planning grounds on which the written request relies may be summarised as follows: 1. When the provisions of the BDCP are considered, the elements within the 6m setback are ancillary and minor, can be considered landscape elements, will not be dominant and present sympathetically to the street. 2. Other than those elements within the setback, the envelope and footprint of the development complies with the 6m setback from ground level upwards. Those elements within the 6m setback are integrated into high quality landscaping that will be inferior should strict compliance be required, and the courtyards be deleted, depriving the street of activation. 3. The elements within the setback do not materially impact surrounding properties in terms of privacy, overshadowing, view or the like. 4. For reasons already summarised, the objectives of the development standard and zone are met, and the variation gives better effect to the aims of the State Environmental Planning Policy No 65 – Design quality in Residential apartment development (SEPP 65), and achieves certain objects of the EPA Act. 1. In respect of cl 4.6(3)(a) of the BLEP, I accept that the written request demonstrates that the character of Cooper Street is protected notwithstanding the encroachment of the courtyards and fencing elements into the 6m setback. In arriving at the conclusion, I accept Mr Mead's opinion that the character of the street is found in landscaped setbacks and low front walls. 2. In respect of cl 4.6(3)(b) of the BLEP, I accept that the environmental planning grounds set out in the written request are sufficient to justify the contravening of the standard because the extent of the exceedance beyond the height of the elements, otherwise described as acceptable and desirable in the Cooper Street frontage by the BDCP, is minor. 3. I am also satisfied that, there being no adverse impact from any non-compliance, and it being consistent with the objective of the standard and the objectives of the zone, the development is in the public interest. In arriving at this state of satisfaction, I am assisted by the concurrence of the planning experts set out in the supplementary joint report. 4. I am also assisted by the relative levels on the architectural plans which, when properly understood, ameliorate the perceived height of the privacy screens from the Cooper Street footpath which is generally higher than the courtyard above which the screen heights are measured. 5. I also consider, but for the elements in breach, the encroachment of courtyards and fencing appears to be generally within the 3m permitted by provision P1, enclosed by fencing shown on Dwg 610 to have a solid base no higher than 600mm, and fencing no higher than 1.5m, beyond which is communal open space to be maintained by the strata management, which is the outcome sought by Provision P2 of Section 3.3.6 of the BDCP. 6. Finally, I note the objective of the standard at cl 6.6 seeks to protect the character of Cooper Street, "including buildings of heritage significance". When the proposed frontage is understood as a whole, and the evidence of the heritage experts is factored, I conclude the proposed frontage not only protects, but positively contributes to the Cooper Street character by enhancing views to the heritage item at 18A Cooper Street from the public domain to the north east, unaffected by the elements in breach. In particular, the removal of the existing mature pine trees and lowering of the existing front brick fence has the effect of bringing the front setback into greater conformity with the predominant character of Cooper Street. 7. Given the limited extent and nature of the breach, I have considered those matters listed at cl 4.6(5) of the BLEP and conclude that there are no grounds on which the secretary's concurrence should not be assumed. 8. As I am satisfied that the written request has adequately addressed the matters required to be demonstrated pursuant to cl 4.6(4)(a)(i) and the public interest in accordance with cl 4.6(4)(a)(ii) of the BLEP, I find the written request in respect of cl 6.6 of the BLEP should be upheld. Heritage conservation 1. As stated at [20], the property to the west of the subject site is a heritage item, and the Respondent contends that the proposed development will have a detrimental impact on the curtilage and setting of 18A Cooper Street, and on the heritage significance of the heritage conservation areas identified at [21]. 2. Ms Trueman's view is that the courtyards to the Cooper Street frontage have an adverse impact, but she also accepts that the provisions of the BDCP permit the same. 3. The primary focus of the heritage evidence was the sightline to the heritage item at 18A Cooper Street that is enabled or otherwise by the proposal. In particular, the height and opacity of the enclosing screens to the front courtyard of Unit G04, and the security screen enclosing the communal open space to the western setback are said to obstruct the sightline from the Cooper Street footpath when moving in a westerly direction past the front of the subject site. 4. Section 4.7 of the BDCP, Heritage in Residential Precincts applies to development in the vicinity of a heritage item or conservation area. Section 4.7.2 relevant provides: "O4 To ensure that development located in the vicinity of a heritage property is designed and sited in a manner sympathetic to the significance of the heritage property and its setting." 1. Provisions P40, 40A and 40B are also relevant to the proposal: "P40 New development, or alterations and additions to existing development, that is located in the vicinity of a heritage property, must be designed and sited to: - Have regard for, and be compatible with, the significance of the heritage property - Reflect the bulk, scale, height and proportion of the heritage property - Respect the front garden setting, any established setbacks, and views and vistas of the heritage property - Be recessive in character and not dominate the heritage property - Interpret the materials and architectural detailing of the heritage property - Respond to the building alignment of the heritage property. P40A Any development having three storeys or more which is contiguous to a heritage property will be expected to observe a 5m minimum setback from the heritage property's boundary (and 4m minimum setback for any below-ground excavation/basement). The purpose of this setback is to: - Provide for a sensitive separation of buildings and maintenance of a heritage item's setting, particularly the "open garden setting" and generous setbacks typical of heritage-listed houses. A setback will be required irrespective of the setback of the heritage building from its boundary. - Enable deep soil landscaping and substantial trees to be accommodated on the development site to provide a landscape buffer. This requirement applies irrespective of whether there is existing landscaping on the heritage property. - Limit the potential for excavation and construction works to negatively affect the structural stability of the heritage item, or affect established trees/landscaping within the heritage property. - Not prejudice the future development of heritage properties, particularly extensions. It is important that heritage places remain viable into the future. - Limit the opportunity for negative impacts upon the amenity (especially noise and visual privacy) enjoyed by the residents/occupants of the heritage property. P40B Any development located on a site contiguous with a heritage property, shall have regard to the following: - The front setback area of the development is to maintain an open setting for the heritage item such as by way of a lower front fence height, sensitive location of the pedestrian access path/entrance, and landscaping. The "privatisation" of the front setback – characterised by courtyards, fences dividing private open space, multiple entries, and high walls – should be avoided. Structures (e.g. bin enclosures, covered letterboxes, fire stairs) should be avoided in the front setback. - The location of driveways in close proximity to the heritage item's boundary is to be avoided. Driveways have the potential to adversely impact the amenity of the heritage property, its setting, cause excavation impacts, and reduce landscaping of the new development. - The location of multiple courtyards or private open spaces along the boundary of the heritage item is to be avoided. This densification of use has the potential to impact the amenity of the heritage property's residents/occupants." 1. According to Mr Davies' written evidence, the proposal responds appropriately to the heritage context for reasons summarised as follows: * Four townhouse elements form a dark brick podium of a scale and materiality that provides a street pattern suitable to its context. * The proposed setback, landscaping, fence heights and materiality will enhance the visibility of the heritage item, and it will be clearly visible from the public domain. * The proposed development is consistent with the provisions of a detailed development control plan, developed for Cooper Street that anticipates residential flat buildings, including recently approved development nearby. * Amendments made to the proposal include a more contiguous landscape setting and sympathetic building alignment to the Cooper Street frontage, side setbacks and improvements to the materiality and green roof elements at Level 3. 1. Ms Trueman acknowledges that the amendments evident in the Exhibit A plans reduce the impact on the adjacent heritage item and heritage conservation areas to a level considered acceptable given the level of compliance otherwise with controls applicable to the site. 2. Furthermore, in their oral evidence, the heritage experts also support the lowering of the privacy screen to the west of the courtyard to G04, reflected in Drawing 506, Revision I for which the Applicant was granted leave prior to closing submissions. 3. Likewise, the experts agree that any further setback of the security screen to the western setback can only improve the visibility of the heritage item at 18A Cooper Street, in respect of which the Applicant advised the security fence can be deleted entirely. Side setbacks and separation 1. The Respondent contends that the side setbacks evident in the Exhibit A plans fail to comply with provisions at Section 3.3.6 of the BDCP, and so fail to ensure adequate separation distances to protect the curtilage and buildings of the heritage item at 18A Cooper Street. 2. While setbacks are also dealt with in Section 4.1.2 of the BDCP, provisions within Section 3.3.6 of the BDCP take precedence over those elsewhere in the BDCP (Ex 3, folio 340) and relevantly provide: "O4 To ensure adequate separation distances to protect the curtilage and buildings of heritage items. … P1 Side setbacks and separation distances are to comply with the Apartment Design Guide design criteria 1 under Objective 3F-1. P2 Separation distances are to be shared equally by both properties to either side of the common boundary… P3 Minimum 2m extra setback from the boundary adjoining a heritage item, in addition to the setback requirements in the Apartment Design Guide (ADG). The additional 2m can be provided at ground level or above the second storey to break the build form. Refer to Figure 22(b) below." Figure 1 - Figure 22(b) setbacks to heritage items 1. The planning and urban design experts agree that provision P3 is effectively achieved by means of a front setback greater than 6m at the north western corner of the site, and by the central portion of the development that is set back by more than 12m from the shared boundary with 18A Cooper Street. Accordingly, the provisions should be applied flexibly in accordance with s 4.15(3A) of the EPA Act. 2. By this, I understand that the deeper front setback permits a greater sightline across the north west corner of the subject site to the heritage item and its curtilage. I also understand the experts agree it is more appropriate to provide the setback at the ground level than the alternative in Provision P3 to adopt a greater setback above the second storey. 3. Visual privacy is dealt with in Provisions 19 and 20 seeking building separation in accordance with the ADG (P19) to avoid overlooking to and from private open space and main habitable areas of the dwellings (P20). 4. The Applicant submits that provision P3 is set aside by cl 6A of SEPP 65 as the effect of the provision P3 and of the design objective at 3F-1 of the ADG on the built form is the same. 5. Clause 6A(2) of SEPP 65 is in the following terms: If a development control plan contains provisions that specify requirements, standards or controls in relation to a matter to which this clause applies, those provisions are of no effect. 1. In my assessment, the provisions are not set aside because, while the term 'separation distances' used in the BDCP is similar to 'building separation distances' employed in the design objective at 3F-1 of the ADG, the provisions deal with sufficiently different impacts to differentiate their purpose. 2. Separation distances at 3F-1 of the ADG deals with privacy between occupants of apartments, while Provision P3 is concerned with maintaining an appropriate curtilage around heritage items, unrelated to overlooking or privacy concerns. 3. According to the Respondent, failure to provide sufficient side setbacks in what is the first residential flat building in this portion of Cooper Street, sets an undesirable precedent for development. In particular, Units 4.06 and 4.08, and Units 5.06 and 5.08, are afforded sightlines to adjoining properties within 6m of the side boundary, and the proposed privacy screens are inadequate to ensure privacy, unsupported by provisions of the ADG. 4. In her oral evidence, Ms Morrish considers the setback and orientation of the Units, and use of screens to achieve an appropriate balance between gaining direct sunlight to the relevant units, while protecting the amenity of adjoining properties in a manner that can be adopted by future development on adjoining lots. 5. In my view, the agreed evidence of the experts considers the particular circumstances of the subject site and its relationship to the adjoining heritage item, as well as to the internal amenity of future occupants of this site and to that of future occupants of future development in the area. 6. While the setbacks depicted in Figure 22(b) of Section 3.3.6 of the BDCP are not achieved, the additional setback to the Cooper Street frontage provides an oblique sightline to 18A Cooper Street, and the setback of more than 12m in the centre of the site relates directly to the private open space of the heritage item to the west. Accordingly, I find no grounds on which the expert evidence should not be accepted by the Court. 7. Reference to the architectural plans of the units of particular concern to the Respondent demonstrate that the arrangement of spaces and their uses have a predominant focus to the north, and not to the east or west side setbacks. Reference to the elevation drawings likewise demonstrates that overlooking from internal spaces is addressed by high level windows in bedrooms, or by screening devices on balconies. 8. Relevantly, I also note that the chapeau, or introduction to Section 3F of the ADG considers visual privacy to be a matter of degree influenced by, among other factors, "an ability to control overlooking with screening devices". 9. Accordingly, I accept that while the proposal may not comply with the setbacks preferred by the BDCP, the Applicant has demonstrated that reasonable alternative solutions achieve the objects of Section 3.36 of the BDCP and I find that the provisions should be applied flexibly in accordance with s 4.15(3A)(b) of the EPA Act. 10. For the reasons stated above, and on the basis of the design statement prepared by Mr Nicholas Nasser (Exhibit D) in accordance with cl 50(1A) of the EPA Regulation, I conclude that adequate regard has been had to the design quality principles, and to the objectives specified in the ADG, in accordance with cl 30(2) of SEPP 65. 11. I address the particular requirements for car parking, being an objective specified in the ADG, at [83]. Consideration 1. Clause 5.10 of the BLEP applies, in the following relevant terms: (1) Objectives The objectives of this clause are as follows— (a) to conserve the environmental heritage of Burwood, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). (5) Heritage assessment The consent authority may, before granting consent to any development— (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. … 1. I have considered the effect of the proposed development on the heritage item at 18A Cooper Street, and the heritage conservation areas in the vicinity of the site. On the basis of the works proposed to lower the front fence, remove the mature pine trees and generally adopt the 6m setback required by cl 6.6 of the BLEP as a minimum, I conclude the impact of the development is acceptable. 2. For the reason stated at [75], I find the setbacks to the Cooper Street frontage and to the side boundaries adjoining existing development to be an acceptable alternative solution to the provisions of the BDCP that would otherwise encourage a uniform setback less than that proposed at the centre of the site addressing the heritage item. 3. Public submissions consider a development of 3-4 storeys to be more consistent with the character and heritage values of the area. This view, while somewhat consistent in submissions, is at odds with the environmental planning instruments applicable to the site. The relevant controls, adopted by the Respondent Council after public exhibition and consideration of submissions, permit a building height of 20.5m on the site, and a FSR of 2.3:1, with which the proposal complies. 4. That said, the proposed development adopts a lower built form in the manner of townhouse elements finished in face brick that is of a scale and materiality that provides a street pattern suitable to its context. 5. While the Respondent raises no contention in respect of the capacity for Cowdrey Lane to accommodate the anticipated traffic and waste collection, public submissions raise this as a concern. I have considered the Updated Traffic and Parking Impact Assessment prepared by Stanbury Traffic Planning dated October 2021 (Exhibit E). For the reasons that follow, I consider the matter to be sufficiently addressed in the application: 1. Data sourced from intersections in the area from February 2020 support traffic counts taken in 2016 that suggest traffic movements in the lane were assessed as between 5 and 7 vehicles per hour, with an additional 10 peak hour trips to and from the site above those already generated by the site. 2. The width of Cowdrey Lane supports two-way traffic between Wentworth Road to the east, and Cooper Lane to the west, permitting manoeuvrability in the lane when blocked by waste collection. 3. SIDRA modelling indicates intersections provide a level of service rated A or B, indicating spare capacity in the immediate vicinity of the subject site. 4. The car parking provision is consistent with the numerical requirements of the BDCP, which is in turn consistent with Objective 3J of the ADG that provides for car parking on sites within 800m of a railway station in the Sydney Metropolitan Area to be determined in that manner. 1. While the height of the proposal may permit views into the private open space of nearby properties at 7 and 9 Cooper Street, which both have swimming pools, evidence of the relevant sightlines is not before the Court. However, if one assumes, on the basis of the site analysis drawing, Dwg 102 (Exhibit A), that such a sightline is possible to obtain from Level 3 of the proposal and above, the distance from the proposed development to the swimming pool at 7 Cooper Street is in excess of 45m, and is in excess of 75m in the case of 9 Cooper Street. 2. I note the BLEP has not adopted controls in respect of development near zone boundaries, however I consider the vantage points from where such a sightline may be possible to be sufficiently distant so as not to give rise to an unreasonable amenity impact for occupants of the subject site, or Nos 7 or 9 Cooper Street. State Environmental Planning Policy No 55 1. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the site history contained in the Heritage Impact Statement (Exhibit J, Tab 9) that is supported by subdivision plans and local maps, and photographic evidence, I am satisfied the site has had a residential use since at least the subdivision of Sir Daniel Cooper's paddock in 1887, and is suitable for the development the subject of the development application. Conclusion 1. After considering all of the evidence before the Court, including the submissions of residents in the area, I have determined that the proposed development is deserving of the grant of consent, subject to conditions pursuant to s 4.16(1) of the EPA Act. 2. The parties have filed without prejudice conditions of consent in accordance with usual practice. The conditions are adopted at Annexure A but for incorporation of the Applicant's advice at [59] into Condition 9 so as to delete the privacy screen to the west of the site into the approval. Orders 1. The Court orders that: 1. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Burwood Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending the development application No. DA 122.2020 filed with the Court on 4 May 2021 by the following amended plans and other documents: 1. Amended architectural plans comprising plans identified as a mix of Revision F and G, prepared by Tier Architects. 2. BASIX Certificate No. 1114818M_03, prepared by EPA, dated 1 February 2022 3. Design Verification Statement prepared by Mr Nicholas Nasser (Arch Reg No. 9457). 4. Amended landscape plans, prepared by Paul Scrivener Landscape, dated 24 January 2022 1. The Applicant is to lodge the amended application on the NSW planning portal within 7 days of the date of this order and notify the Respondent after it has been lodged. 2. The Applicant's written request, prepared in accordance with clause 4.6 of the Burwood Local Environmental Plan 2012, to vary the control at clause 6.6 of the Burwood Local Environmental Plan 2012 is upheld. 3. In the event that (2) is complied with, the Applicant is to pay the Respondent's costs thrown away as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 4. The appeal is upheld. 5. Development consent is granted to Development Application No 122.2020 (the DA) for the construction of a six-storey residential flat building and associated landscaping at 18 Cooper Street, Strathfield, subject to conditions of consent at Annexure A. 6. All Exhibits are returned, except for Exhibits A, B, C, D, J and 1. ………………….. T Horton Commissioner of the Court (Annexure A) (394479, 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: 18 March 2022