Land and Environment Court New South Wales Medium Neutral Citation: Fusion Development Pty Ltd v Randwick City Council [2022] NSWLEC 1255 Hearing dates: 2- 4 March 2022 Date of orders: 23 May 2022 Decision date: 23 May 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld; (2) Development consent is granted to development application DA/489/2020 for demolition of existing structures, construction of a part 5, part 16 storey mixed use development over basement carparking at 273-275 Anzac Parade Kingsford (Lot 1 DP129966 and Lot 1 DP940263), subject to the conditions of consent in Annexure A. (3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent that are thrown away as a result of the amendment of Development Application DA/489/2020 as agreed or assessed. (4) Exhibits are returned with the exception of Exhibits A, E and 6 which are to be retained. Catchwords: DEVELOPMENT APPLICATION – mixed use development, boarding house – site is part of key site under planning controls – whether a competitive design process is unreasonable or unnecessary in the circumstances of the development– whether the development exhibits design excellence – weight to be given to new development control plan – appeal upheld Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.7, 8.15 Environmental Planning and Assessment Amendment (Housing) Regulation 2021 Environmental Planning and Assessment Regulation 2000, cl 55 Environmental Planning and Assessment Regulation 2021, cl 29 Randwick Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 6.2, 6.4, 6.10, 6.11, 6.16, 6.17, 6.18, 6.19, 6.20, 6.21 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 27, 29, 30, 30A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, cll 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70 State Environmental Planning Policy (Infrastructure) 2007, cll 85, 86 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 28 State Environmental Planning Policy (Resources and Energy) 2021, cl 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021 cll 2.98, 2.118, 2.119, 2.121 Water Management Act 2000, s 90 Cases Cited: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 MGT 6 Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1211 One Forty William Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1290 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 Tamvakeras v Inner West Council [2022] NSWLEC 1140 Tomasic v Port Stephens [2021] NSWLEC 56Wehbe v Pittwater (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Australian Standard AS 2107:2016 "Acoustics - Recommended design sound levels and reverberation times for building interiors", (October 2016) NSW Department of Planning and Environment, Apartment Design Guide, (July 2015) NSW Department of Planning, Development Near Rail Corridors and Busy Roads- Interim Guideline, (December 2008) Australian Standard AS 2107:2016 "Acoustics - Recommended design sound levels and reverberation times for building interiors" Randwick Comprehensive Development Control Plan 2013 Category: Principal judgment Parties: Fusion Development Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: T To (Applicant) M Astill (Respondent) Solicitors: Mills Oakley (Applicant) Randwick City Council (Respondent) File Number(s): 2021/200198 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by the Applicant against the deemed refusal of their development application (DA/489/2020) by Randwick City Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal of the development application pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). As amended, the development application seeks development consent for: demolition of existing structures; and construction of a part 5, 11 and part 16 storey mixed use development with two tower elements. The proposed development comprises basement car parking, ground and first floor commercial uses, with a boarding house above containing 141 boarding rooms. The development application is accompanied by a Voluntary Planning Agreement (VPA). The development is proposed at 273 – 275 Anzac Parade, Kingsford. 2. Prior to the hearing the Applicant lodged a Notice of Motion seeking to rely on amended plans for the development application. The Respondent provided their consent to the amendment and leave was granted by the Registrar to rely upon the amended plans on 7 December 2021. The amended development application was subsequently uploaded to the Planning Portal in compliance with cl 55(1) of the then Environmental Planning and Assessment Regulation 2000 (EPA Regulation). 3. At the commencement of the hearing, the Applicant again sought leave to amend their development application in response to the evidence adduced in the joint reports in the proceedings. The amendments are summarised by the Applicant as follows: * The removal of the upper two levels of the proposed tower, reducing the height from 18 storeys to 16 storeys. A reduction in boarding room numbers to 141. * Basement amendments to clarify the allocation of parking spaces. * Amendments to room layouts on proposed level 2 to relocate rooms that previously fronted a courtyard and replace them with communal indoor and outdoor space. * Laundry relocation. * Introduction of a small setback within room type D2 to improve the interface with the existing building to the north of the subject site. (Exhibit C) 1. Following an adjournment to review and consider the amended plans, the Respondent did not oppose the motion. The Notice of Motion included orders requiring the uploading of document to the Planning Portal. By consent the motion was granted by the Court. The parties made an agreed submission that the amendments to the development application were more than minor: this triggers the obligation upon the Court to order payment of Respondents costs thrown away pursuant to s 8.15(3) of the EPA Act. I accept the agreed submission of the parties that the three components of s 8.15(3) of the EPA Act are made out, namely that the development application has been amended, the amendments are more than minor and that costs have been thrown away by the Respondent as a result of the amendment. Accordingly, I make orders at [93]. 2. Finally, the development application was further amended responsive to the acceptance by the Council, at the Ordinary Council Meeting of 28 February 2022, of the Applicant's revised VPA of 21 February 2022. The VPA proposes a number of footpaths, public realm and laneway improvements at the front and rear of the site. The development application was amended to include these additional areas of land within the site of the development and incorporate them into the works for which consent is sought. 3. In its final form, the development application seeks consent for a mixed use development containing commercial tenancies and 141 boarding rooms over a single level of basement carparking. The development comprises a built form of two towers, the first of which steps from 11 to 16 storeys with the second a lower tower of five storeys. It incorporates landscaping, site works and the improvements detailed in the VPA. Issues 1. Despite the amendments and provision of additional information, the Respondent maintains the development application warrants refusal on the three main grounds. They are: 1. That the proposed development does not exhibit design excellence as required by cl 6.21(3) of Randwick Local Environmental Plan 2012 (LEP 2012) resulting in that precondition not being met and the Court having no power to grant consent; 2. That a competitive design process was not undertaken by the Applicant as required by cl 6.21(5) of LEP 2012. Further, that the Court would not be satisfied that such a competitive design process is unreasonable or unnecessary in the circumstances, resulting in the precondition not being met and the Court having no power to grant consent; 3. That the form of the development is inconsistent with the planning intent for the Kensington to Kingsford Precinct for two reasons. Firstly, because the proposed building varies the applicable building envelope controls that apply to the Kensington and Kingsford Town Centres in the Randwick Comprehensive Development Control Plan 2013 (DCP 2013). Secondly, that the development is not compatible with the desired future character of the local area as a result of its height, bulk, scale and insufficient setbacks. The site 1. The site, excluding the land the subject of the VPA, is legally identified as Lot 1 DP 129966 and Lot 1 DP 940263, known as 273-275 Anzac Parade, Kingsford. The site area is 1275m². 2. Adjoining the site to the north is an existing mixed used development of 8-9 storeys with commercial uses at ground floor and upper-level residential apartments. This development occupies 255 -271 Anzac Parade, Kingsford. 3. Adjoining the site to the south is 277-279 Anzac Parade which contains a three storey mixed use development with access from Houston Lane to the rear. Adjoining that site is 289-291 Anzac Parade which is at the corner with Strachan Street. These two properties to the south of the site represent the remaining parcels of land that form, with the subject site, a Strategic Node Site as defined in DCP 2013. 4. The development application relates to part of a strategic node site delineated as K6 within the Kingsford Town Centre and more specifically the Kingsford Midtown Precinct as described by DCP 2013. Part E – Specific Sites in DCP 2013 contains, at Section E6, development controls for the Kensington and Kingsford Town Centres. The bounds of the subject site are identified in the following extract of Figure 5a in Section E6 of DCP 2013: Subject site 1. Section E6 of DCP 2013 describes parts of the Kensington and Kingsford town centres located along Anzac Parade as an important urban renewal corridor in the Randwick City local government area. The subject site is contained within this corridor on the western side of Anzac Avenue, close to its intersection with Strachan Street. Public Submissions 1. The development application was notified by the Respondent for thirty days from 30 September 2020. Thirteen submissions were received. Broadly the submissions raise the following issues with the development as it was at that time: * That the development is inconsistent with the planning controls for Kensington to Kingsford, in particular the building envelope controls. * That the rooms indicated as double rooms are of insufficient size to accommodate the required furniture. * The proposed development does not incorporate waste disposal in line with that envisaged for the strategic sites. * That the development should not be granted a deviation from the building envelope controls on the basis that the whole of the strategic node site was not able to be acquired. * No evidence is provided in the development application that the Applicant has made reasonable attempts to acquire the remaining sites. * No design competition has been held for the site as required by the development controls in LEP 2012. * That the demolition and construction of the development will cause noise, dust and vibration impacts for adjoining properties. * The proposal lacks laundry facilities for the boarding house occupants * The communal spaces are inadequate and are not compliant with the requirements of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). * The locality has a concentration of student housing and there should be a mix of housing provided, not solely for students. 1. At the commencement of the hearing, a member of the public addressed the Court detailing their concerns with the development application. Of particular concern for the resident was the impact of noise, vibration, dust and general disruption caused by the demolition and redevelopment process if the application was approved. I acknowledge that the resident indicated specific circumstances that would exacerbate the effect of these impacts on his family. 2. In determining the development application, I have read and considered the submissions received by the public as required by s 4.15(1)(d) of the EPA Act. Expert Evidence 1. The Court was assisted by town planning experts, Mr Jeff Mead for the Applicant and Mr Gerard Turisi for the Respondent. These experts conferenced with the urban design experts in the proceedings, Mr Alan Cadogan for the Applicant and Mr Geoff Baker for the Respondent. The joint reports of these experts were tendered as Exhibit 4 and 8 in the proceedings. In addition to their joint reports the experts were called for cross examination. 2. The Court was also assisted by traffic experts, Ms Meg Kong for the Applicant and Mr Jason Rider for the Respondent. The joint report of these experts was tendered as Exhibit 2 in the proceedings. The experts were not required for cross examination. 3. The Court was also assisted by waste management experts, Garry Dickens for the Applicant and Mr David Caleo for the Respondent. The joint report of these experts was tendered as Exhibit 3 in the proceedings. The experts were not required for cross examination. 4. As the result of the expert evidence, the following contentions were resolved either by agreement of the experts, amended plans, or through the imposition of conditions of consent: 1. The extent of parking provision and its compliance with the carparking standards for vehicles and motorbikes at cll 29(2)(2) and 30(h) of SEPP ARH. (Exhibit 2) 2. The need to make provision of an automated waste collection system, waste chutes in the development. Further, that the site is capable of being serviced by the Council's waste vehicles. (Exhibit 3) 1. These matters are no longer pressed by the Respondent. Preconditions to Consent 1. Prior to considering the contentions raised by the Respondent in support of the refusal of the development application or undertaking an assessment of the merit of the development application, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16]. My consideration of the preconditions relevant to the development application follows. 2. The development application was lodged as integrated development pursuant to s 4.56 of the EPA Act as dewatering is required: s 90 of the Water Management Act 2000. General Terms of Approval (GTA) were provided by Water NSW on 28 January 2021 for a water supply work. The conditions of the GTA are incorporated in the annexed conditions of consent. 3. The development application was lodged with a BASIX certificate that satisfied the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The Environmental Planning and Assessment Amendment (Housing) Regulation 2021 came into effect on 26 November 2021. It amended the definition of a 'BASIX affected building' to specifically not include boarding houses. As such no amended BASIX certification is required. 4. State Environmental Planning Policy (Resilence and Hazards) 2021 (SEPP Resilience and Hazards) came into force on 1 March 2022. In considering whether the site is contaminated, as required by cl 4.6 of SEPP Resources and Energy, I have had reference to the Preliminary Site Investigation and Detailed Site Investigation (DSI) prepared by EI Australia as part of the development application. The DSI made a number of recommendations including the requirement for: a Hazardous Materials Survey prior to demolition, an Asbestos Management Plan, an Asbestos Clearance Certificate post demolition, and finally a Remediation Action Plan. Each of these recommendations form part of the agreed conditions of consent in Annexure A. On the basis of the implementation of its recommendations the DSI concludes that: "EI considers that based on the proposed development plans provided, and the localised contamination identified, the land can be made suitable for its intended use as a mixed, commercial and residential (with minimal soil access)." (Exhibit B) 1. I am satisfied that the land requires remediation to be suitable for the proposed use. I am further satisfied that the proposed conditions of consent will require the appropriate remediation to occur prior to the land being used for a commercial and residential purpose. Clause 4.6 of SEPP Resilience and Hazards is satisfied. 2. The development application was referred to Transport for NSW (TfNSW) in September 2020 pursuant to the then State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure), as the subject site adjoins a classified road (Anzac Parade). TfNSW requested a traffic report to be prepared by the Applicant to assist their assessment of the development application. Following the provision of the additional information requested TfNSW provided concurrence by letter of 22 October 2020. The annexed conditions of consent require the development to be carried out in accordance with the conditions of the concurrence letter. 3. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport Infrastructure) came into force on 1 March 2022. SEPP Transport Infrastructure transfers the provisions of SEPP Infrastructure to the new instrument. Division 17, sub div 2 of SEPP Transport Infrastructure applies to the new development as development adjacent to road corridors. 4. I am satisfied that cl 2.118(2) of SEPP Transport Infrastructure is met as follows. Firstly, vehicular access to the proposed development is provided from Houston Lane. This will ensure that the development will have no adverse impact on the operation of Anzac Parade (the classified road). Secondly, an acoustic report has been prepared by White Noise Acoustics as part of the development application. This report makes specific recommendations for minimum façade acoustic performance ratings to ensure that future internal noise levels of the development will comply with Australian Standard AS 2107:2016 "Acoustics - Recommended design sound levels and reverberation times for building interiors" and the Department of Planning guidelines: Development Near Rail Corridors and Busy Roads- Interim Guidelines. These recommendations of the Acoustic Report have been incorporated into the annexed conditions of development consent. Finally, the Applicant has prepared an Air Quality Impact Assessment Report confirming that the vehicle emissions arising from the classified road can be appropriately ameliorated. I am satisfied that the provisions of cl 2.118(2) of SEPP Transport Infrastructure are met. 5. As the development has frontage to a road with an annual average daily traffic volume of more than 20,000 vehicles (Anzac Parade) and is, in part, for the purpose of residential accommodation, pursuant to cl 2.119(2) of SEPP Transport Infrastructure, the consent authority must not grant consent to a development unless it is satisfied that appropriate measures will be taken to ensure that specified noise levels are achieved. On the basis of the acoustic report that has been prepared by White Noise Acoustics, I am able to be so satisfied. 6. Pursuant to cl 2.121 of SEPP Transport Infrastructure, the development is classified as traffic generating development as the access to the development is within 90m of a classified road (Anzac Parade) and the development contains more than 70 dwellings. Consistent with cl 2.119(3) of SEPP Transport Infrastructure, the application was referred to TfNSW and in determining the development application I have taken into consideration their concurrence. 7. As the proposed development requires excavation adjacent the Sydney Light Rail corridor, written notice of the development application was provided to TfNSW as the rail authority in accordance with the requirements of cll 85 and 86 of the then SEPP Infrastructure. I note that TfNSW provided concurrence by letter of 22 October 2020 with conditions, which appear at Condition 11 of the agreed conditions of consent at Annexure A. The requirements of SEPP Transport Infrastructure at cl 2.98 are similarly met. 8. State Environmental Planning Policy (Housing) 2021 (SEPP Housing) commenced on 26 November 2021. SEPP Housing was then amended on 18 March 2022. Relevantly, the amendment updated the savings and transitional provisions at sch 7A of SEPP Housing. Applying the provisions sch 7A, cl 2(1)(a) of SEPP Housing, the instrument does not apply to a development application, made but not determined before the commencement date. Further, subcl (2)(2) of sch 7A states: (2) The provisions of a repealed instrument, as in force immediately before the repeal of the repealed instrument, continue to apply to a matter referred to in subsection (1). 1. Such a repealed instrument is SEPP ARH: Chapter 1 sec 10 SEPP Housing. 2. I agree with and adopt the reasoning of Peatman AC in Tamvakeras v Inner West Council [2022] NSWLEC 1140 at [20]-[36] that the effect of the savings and transitional provisions is that SEPP Housing does not apply to a development application made, but not determined prior to 18 March 2022. The development application the subject of these proceedings is such an application. On this basis I am satisfied that the provisions of SEPP ARH continue to apply to the development. 3. Division 3 of SEPP ARH applies to a development application for the purposes of a boarding house in a B2 Local Centres zone: cll 26 and27 of the SEPP ARH. Pursuant to cl 29(1) of SEPP ARH, residential flat buildings are a permitted land use in the B2 Local Centres zone and the subject site does not contain a heritage item, therefore the 'bonus' floor space afforded by SEPP ARH is available to the development. SEPP ARH allows an additional 20% floor space ratio (FSR) on top of the existing maximum FSR applicable to the site, if the maximum FSR is greater that 2.5:1. The final calculation of the FSR control for the subject site is at [46]. 4. Clause 30 of SEPP ARH provides standards for boarding houses. Relying on the Applicant's Statement of Environmental Effects (SEE) and the architectural plans for the development, Exhibit A and E respectively, I am satisfied that the precondition at cl 30(1) of SEPP ARH requiring compliance with the listed standards, is satisfied. 5. Clause 30A of SEPP ARH states that a consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. My consideration of the compatibility of the development with the character of the local area is detailed later in the judgment. Having undertaken such consideration as part of the determination of the development application, the precondition at cl 30A of SEPP ARH is satisfied. 6. If my findings at [33] are in error, pursuant to SEPP Housing, the proposed development would meet the definition for 'co-living housing': Pt 3 cll 60-70 of SEPP Housing. That use is permissible in the B2 Local Centres zone as residential flat buildings are permitted with consent. The remaining mandatory standards at cl 69(1) of SEPP Housing are met as follows: * No boarding room is greater than 25m². (Exhibit E) * No minimum lot size applies to residential flat buildings in LEP 2012. * No part of the ground floor of the development fronting Anzac Parade will be utilised for residential purposes. * An appropriate workspace is provided for the Manager of the boarding house. * No boarding room will be utilised by more than two adults and I am satisfied that the bathroom, kitchen and laundry facilities will be adequate. 1. The precondition to consent at cl 69(1) of SEPP Housing is met. 2. Clause 69(2) of SEPP Housing requires the consent authority to give consideration to specific matters prior to the grant of consent. They are: (a) the front, side and rear setbacks for the co-living housing are not less than— (i) for development on land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential—the minimum setback requirements for multi dwelling housing under a relevant planning instrument, or (ii) for development on land in Zone R4 High Density Residential—the minimum setback requirements for residential flat buildings under a relevant planning instrument, and (b) if the co-living housing has at least 3 storeys—the building will comply with the minimum building separation distances specified in the Apartment Design Guide, and (c) at least 3 hours of direct solar access will be provided between 9am and 3pm at mid-winter in at least 1 communal living area, and (d) at least 1 bicycle parking space will be provided for each private room, and (e) at least 1 motorcycle parking space will be provided for every 5 private rooms, and (f) the design of the building will be compatible with— (i) the desirable elements of the character of the local area, or (ii) for precincts undergoing transition—the desired future character of the precinct. 1. The matters at (a) do not apply to the development as the subject site is zoned B2: Local Centre. In determining the development application, I have given consideration to the remaining matters, along with the expert evidence and submissions. It is the conclusion of my assessment that none of the matters listed at cl 69(2) of SEPP Housing warrant the refusal of the development application. 2. LEP 2012 applies to the site. Pursuant to LEP 2012 the site is zoned B2 Local Centre. Development for the purposes of boarding houses and commercial premises are uses permitted with consent in the B2 Local Centre zone. As required by cl 2.3(2) of LEP 2012 in determining the development application, I have had regard to the following zone objectives: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To enable residential development that is well-integrated with, and supports the primary business function of, the zone. • To facilitate a high standard of urban design and pedestrian amenity that contributes to achieving a sense of place for the local community. • To minimise the impact of development and protect the amenity of residents in the zone and in the adjoining and nearby residential zones. • To facilitate a safe public domain. 1. Demolition is permitted with consent: cl 2.7 of LEP 2012. 2. Clause 4.3 Height of Buildings of LEP 2012 provides a maximum height of buildings on the subject site of 24m. Clause 4.3 FSR provides a maximum FSR for buildings on the land of 3:1. 3. However, alternative heights of up to 54m, and an alternative FSR of 5:1 are available under cl 6.17 of LEP 2012. This clause is engaged if the development includes community infrastructure on the site: cl 6.17(2) of LEP 2012. Community infrastructure is defined in cl 6.17(5) of LEP 2012 to mean development for the purposes of 'community facilities, recreational areas, recreational facilities (indoor), recreational facilities (outdoor), public roads and drainage'. 4. The proposed development, as amended, includes a number of footpaths, public realm and laneway improvements at the front and rear of the site. These works are proposed as part of the VPA, which has been accepted by Council. In response the site, for the purposes of the development application, has been amended to include these additional areas of land. Thus, I am satisfied that the alternative heights and FSR under cl 6.17 of LEP 2012 are available. 5. The maps in LEP 2012 relevant to cl 6.17 designate the site as 'Y2' and provide a maximum height of 54m and FSR of 5:1. Given the applicability of cl 29(1) of SEPP ARH, the maximum FSR applicable to the proposed development on the subject site is 6:1. I am satisfied that the development application complies with both the maximum height and FSR development standards. (Exhibit E) 6. Clause 6.17 'Community infrastructure height of buildings and floor space at Kensington and Kingsford town centres' of LEP 2012 contains the following precondition at subcl (3): (3) In deciding whether to grant development consent, the consent authority must— (a) be satisfied that the development is consistent with the objectives of this clause, and (b) be satisfied that the community infrastructure is reasonably necessary at Kensington and Kingsford town centres, and (c) take into account the nature of the community infrastructure and its value to the Kensington and Kingsford town centres community. 1. The objectives of cl 6.17(1) are: (a) to allow greater building heights and densities at Kensington and Kingsford town centres where community infrastructure is also provided, (b) to ensure that those greater building heights and densities reflect the desired character of the localities in which they are allowed and minimise adverse impacts on the amenity of those localities, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure. 1. The parties submit, and I agree, that the works proposed in the VPA meet the definition of community infrastructure. Further, they agree that in conformance with the requirements of subcl (3)(a) of 6.17 of LEP 2012, the development is consistent with the objectives of the clause. For the following reasons, I am satisfied that the development is consistent with the objectives of cl 6.17 ofLEP 2012. Firstly, the development application will provide community infrastructure as part of its implementation. Secondly, for the reasoning detailed in this judgment, I am satisfied that the building height and density of the proposed development is consistent with the stated desired future character of the precinct and minimises any adverse impacts on amenity. Finally, I am satisfied that the development is consistent with the provision of an intensity of development that is commensurate with the capacity of existing and planned infrastructure. I form this opinion based firstly on the 'Kensington and Kingsford Town Centres Community Infrastructure Contributions Plan' (Contributions Plan) which identifies and particularises the infrastructure required to implement the Kensington to Kingsford Town Centres Planning Strategy on which LEP 2012 is based. Secondly, I note that both the VPA and the requirement to pay development contributions in the annexed conditions will contribute to the delivery of the infrastructure identified in the Contributions Plan. I find that cl 6.17(3) of LEP 2012 is satisfied. 2. Clause 6.2 'Earthworks' in LEP 2012 applies to the proposed development as it proposes basement car parking. The development application is accompanied by a geotechnical report prepared by EI Australia. (Exhibit A) The report identifies the soil profile of the site and makes a number of recommendations in relation to geotechnical issues including excavation methodology; monitoring of ground water; excavation retention; foundations and the basement floor slab. Compliance with the recommendations of the geotechnical report is incorporated into the annexed conditions of consent. In determining the development application, I have given consideration to the matters at cl 6.2(3) of LEP 2012. I am satisfied no factors give rise to a reason which warrants the refusal of the development application. 3. Clause 6.4(3) Stormwater Management of LEP 2012 requires the Court as consent authority to be satisfied of specific matters prior to the grant of consent, they are: (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development— (a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and (b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and (c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact 1. The development application includes stormwater engineering plans prepared by Zimmerman Engineers. On the basis of the stormwater engineering plans (Exhibit A) and the architectural plans (Exhibit E), I am satisfied the proposed development maximises the use of permeable surfaces through the creation of green walls, landscaped spaces and planting. Further, onsite detention is provided within the ground level basement. The BASIX certificate for the proposed development identifies roof water will be in part collected for use as irrigation water. Finally, I am satisfied that stormwater management will avoid any adverse impact on adjoining properties or environments. The precondition at cl 6.4 of LEP 2012 is satisfied. 2. Clause 6.10 of LEP 2012 provides: 6.10 Essential services 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 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 vehicular access. 1. The parties agree, and I accept, that the essential services identified in cl 6.10 of LEP 2012 are provided. I am satisfied that the services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required. I note my comments at [51] regarding the management of stormwater and at [27] and [28] in relation to vehicular access. 2. Pursuant to cl 6.11(2)(c) of LEP 2012, the proposed development is required to exhibit design excellence as it involves construction of a new building which has an overall height greater than 15m. The following factors are required to be considered in determining if the development exhibits design excellence: 6.11 Design excellence … (4) In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters— (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the development will improve the quality and amenity of the public domain, (c) how the proposed development responds to the environmental and built characteristics of the site and whether it achieves an acceptable relationship with other buildings on the same site and on neighbouring sites, (d) whether the building meets sustainable design principles in terms of sunlight, natural ventilation, wind, reflectivity, visual and acoustic privacy, safety and security and resource, energy and water efficiency, (e) whether the proposed development detrimentally impacts on view corridors and landmarks. 1. The consent authority must be satisfied that the development exhibits design excellence to enliven the power to grant consent: cl 6.11(3) and cl 6.21(3) of LEP 2012. Whether the development exhibits design excellence was a contention in the proceedings and addressed commencing at [60]. My findings regarding the design excellence provisions commence at [89]. 2. Clause 6.18 Affordable housing at Kensington and Kingsford town centres applies. The subject site is identified as 'Area 1' in the special provisions map. The proposed development falls within the provisions of cl 6.16(2)(a) of LEP 2012, being a development application lodged between 13 August 2020 and 13 August 2022. Accordingly, the consent authority may impose a condition of consent requiring a contribution equivalent to the housing affordability levy being 3% of the total floor area of the building intended to be used for residential purposes. Pursuant to cl 6.18(4)(b) of LEP 2012, Condition 91 in Annexure A requires payment of a contribution prior to the release of Occupation Certificate. Clause 6.18 of LEP 2012 is satisfied. 3. Pursuant to cl 6.19 Non-residential floor space ratios in Kensington to Kingsford town centres, the site has a non-residential FSR of 1:1. Applying the clause, the proposed development requires a minimum provision of non-residential floor area of 1275m². The proposed development incorporates 1306m² of non-residential floor area. (Exhibit E) cl 6.19 of LEP 2012 is satisfied. 4. The frontage of the site to Anzac Parade is land identified on the Active Street Frontages Map. Clause 6.20 Active Street Frontages contains a precondition at subcl (4) which precludes the grant of development consent unless the consent authority is satisfied that all premises on the ground floor of the proposed building are to be used for the purposes of commercial premises. The architectural plans in Exhibit E propose retail premises on the ground floor of the building fronting Anzac Parade, satisfying the clause. Further, I find it is appropriate to include further detail in the proposed ongoing condition 118 to ensure ongoing satisfaction of cl 6.20 of LEP 2012 as follows: "Use of Commercial Premises 118. No consent has been granted for the use of the commercial premises. A separate development consent (ie. a DA or CDC) shall be obtained for the use of all commercial premises within the building. Any use of the ground floor with frontage to Anzac Parade must be for the purpose of commercial premises and comply with the requirements of cl 6.20 of LEP 2012." 1. I find that cl 6.20 of LEP 2012 is satisfied. 2. Whether cl 6.21 Design Excellence is satisfied is the subject of contention one and two in the proceedings and is addressed in the following. Clause 6.21 of LEP 2012 applies to the proposed development which is marked 'Y2' on the Alternative Heights Map: cl 6.21(1) of LEP 2012. The clause seeks to ensure that development exhibits design excellence that contributes to the natural, cultural, visual and built character values of Kensington and Kingsford town centres. Clause 6.21 contains two preconditions which are central to the issues that remain in dispute between the parties. The first, in subcl (3) is a precondition to the exercise of the power to grant consent. It requires the consent authority to consider specific considerations at subcl (4) and to be satisfied that the development exhibits design excellence to enliven the power to grant consent to a development application. 3. The second precondition is contained in subcll 6.21(5) and (6). Sub clause (5) is a precondition to the grant of consent 'unless a competitive design process has been held'. However, the requirement at subcl (5), is subject to the exception contained at subcl (6) which allows an exception to the requirement for a competitive design process where the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances of that development. 4. The whole of cl 6.21 of LEP 2012 states: 6.21 Design excellence at Kensington and Kingsford town centres (1) The objective of this clause is to ensure that development exhibits design excellence that contributes to the natural, cultural, visual and built character values of Kensington and Kingsford town centres. (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land identified as "Y1" or "Y2" on the Alternative Building Heights Map. (3) Development consent must not be granted to development to which this clause applies unless the consent authority considers that the development exhibits design excellence. (4) In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters— (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the development will improve the quality and amenity of the public domain, (c) whether the development detrimentally impacts on view corridors and landmarks, (d) how the development addresses the following matters— (i) the suitability of the land for development, (ii) existing and proposed uses and use mix, (iii) heritage issues and streetscape constraints, (iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts such as sustainable design, overshadowing, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, (x) the impact on, and any proposed improvements to, the public domain, (xi) whether the building meets sustainable design principles in terms of sunlight, natural ventilation, wind, reflectivity and resource, energy and water efficiency, (xii) visual and acoustic privacy and safety and security of the building. (5) Development consent must not be granted to the development to which this clause applies unless a competitive design process has been held in relation to the proposed development. (6) A competitive design process is not required under subclause (5) if the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances of that development. (7) Despite clause 4.3, if— (a) the design of a new building, or an external alteration to an existing building, is the winner of a competitive design process, and (b) the consent authority is satisfied that the building or alteration exhibits design excellence, the consent authority may grant development consent for development to which this clause applies with a building height that exceeds the maximum height shown for the land identified as "Y1" or "Y2" on the Alternative Building Heights Map by up to 6 metres. (8) Despite clause 4.4, if the consent authority considers the development exhibits design excellence and the proposed development includes community infrastructure, the amount of floor space of the community infrastructure is to be excluded from the total gross floor area of the development. (9) In this clause— community infrastructure means development for the purposes of recreation facilities (indoor), recreation facilities (outdoor) and community facilities. competitive design process means an architectural design competition carried out in accordance with procedures approved by the Planning Secretary. 1. I note that LEP 2012 contains two preconditions referable to design excellence: cl 6.11(3) and cl 6.21(3). Each precondition requires the consent authority to give consideration to specific factors listed at cll 6.11(4) and 6.21(4) respectively. 2. The question of whether the proposed development exhibited design excellence was the subject of expert evidence. The positions of the various experts on this matter are summarised in the following. Does the development exhibit design excellence? Matters for consideration: Clause 6.11(4) of LEP 2012 1. In the joint report, Mr Mead relies on a written response prepared by himself, titled 'Design Excellence Response to the Statement of Facts and Contentions under DA/489/2020' (Design Excellence Response). The Design Excellence Response addresses each of the matters listed at cl 6.11(4) and 6.21(4) of LEP 2012. Mr Mead's evidence is summarised below. 2. Subcl 6.11(4)(a): 'Whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved' * The proposal provides a high-quality contemporary approach incorporating a variety of design elements and materials. * Deep articulation, material selection and careful design result in the proposal exhibiting design excellence. (Exhibit B) 1. Subcl 6.11(4)(b): 'Whether the form and external appearance of the development will improve the quality and amenity of the public domain' * The form and external appearance exhibit design excellence by improving the character of the subject site and the pedestrian experience of Anzac Parade and Houston Lane. (Exhibit B) 1. Subcl 6.11(4)(c): 'Whether the proposed development responds to the environmental and built characteristics of the site and whether it achieves an acceptable relationship with other buildings on the site and on neighbouring sites' * The site is located in the B2 Local Centre zone which allows nil side setbacks. * The design is responsive to the existing building located to the north of the site. * Similarly, the proposed development provides a transition to future development to the south (the remainder of site K6). * The proposed development does not affect the future development potential for adjoining sites, nor have any adverse impact to the amenity of any existing or future development in terms of privacy, solar access, or views. * The proposal provides an architectural design with a defined base, middle and top. Further, the architecture is composed of elements and materials that make the design compatible with the desired future character of the locality. (Exhibit B) 1. Subcl 6.11(4)(d): 'Whether the building meets sustainable design principles in terms of sunlight, natural ventilation, wind, reflectivity, visual and acoustic privacy, safety and security and resource, energy and water efficiency' * The proposal will deliver a high level of internal amenity for residents. * The proposal will not result in adverse impacts to the solar access, ventilation, and privacy of neighbours. (Exhibit B) 1. Subcl 6.11(4)(e) 'whether the proposed detrimentally impacts on view corridors and landmarks' * There are no significant view corridors or landmarks located on, or passing across, the subject site. * The proposed development will not impact on public view corridors. (Exhibit B) Clause 6.21(4) of LEP 2012 1. The first three of the matters listed under cl 6.21(4) of LEP 2012 are substantively the same as those listed at cl 6.11(4) of LEP 2012. The Design Excellence Response replicates the preceding arguments against these matters for consideration. The argument in the Design Excellence Response against the remaining matters for consideration at cl 6.21(4) of LEP 2012 follow. 2. Sub cl 6.21(4)(d): requires the consent authority to consider how the development addresses the following matters. Under each of these listed matters I have summarised the pertinent evidence of Mr Mead in the following: (i) the suitability of the land for development, * The proposal provides a mixed-use development which is permissible in the zone. Further, it involves the provision of necessary community infrastructure and suitable student housing in close proximity to universities. (ii) existing and proposed uses and use mix, * The development replaces an existing commercial development and will provide additional retail, commercial and residential uses in proximity to public transport. (iii) heritage issues and streetscape constraints, * The proposal provides a defined podium along Anzac Parade which align with nearby contributory heritage items. The high quality architectural design is a significant improvement on the existing built fabric and will provide a positive streetscape contribution. (iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity, and urban form, * The proposed development has been designed to respond to the siting and location established to mixed use development on the neighbouring property to the north. Similarly, the proposed development provides an appropriate transition of built form to the properties to the south, which are earmarked for redevelopment. The proposal represents an appropriate transition and will not impact the ability of the neighbouring properties to redevelop or their amenity. (v) bulk, massing and modulation of buildings, (vi) street frontage heights, * The proposal is purposefully designed to provide a highly articulated façade with appropriate modulation to ensure the bulk and massing of the development, although varying from the DCP 2013 envisaged form, will achieve a high level of design excellence. Specifically, the proposal provides a defined base, middle and top section with a variety of architectural elements integrated throughout as to provide an architectural form consistent with the desired character of the locality. * The design proposes ground floor active uses fronting Anzac Parade to activate the streetscape. (vii) environmental impacts such as sustainable design, overshadowing, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (xi) whether the building meets sustainable design principles in terms of sunlight, natural ventilation, wind, reflectivity and resource, energy and water efficiency, * The development will be implemented in accordance with the BASIX certification and will not result in adverse impacts to neighbouring properties from overshadowing or wind. (ix) pedestrian, cycle, vehicular and service access, and circulation requirements, * The development will assist in promoting activity (walking/cycling) and public transport usage by providing only a single level basement carparking as well as pedestrian and public domain improvements. (x) the impact on, and any proposed improvements to, the public domain, * Through the VPA and the activated frontage, the proposed development will provide streetscape improvements. (xii) visual and acoustic privacy and safety and security of the building. * The design orients residential openings to the front and rear boundaries to ensure visual and acoustic privacy for neighbouring properties. * Further, the development will also provide security measures and improved casual surveillance over Anzac Parade and Houston Lane. (Exhibit B) Design Excellence expert evidence 1. After consideration of the preceding factors, Mr Mead concludes that for the reasons given in the preceding, the proposal as amended during the proceedings achieves design excellence. (Exhibit 4) 2. Mr Cadogan also argues that the development exhibits design excellence as required by cl 6.11(3) and 6.21(3) of LEP 2012. He argues this conclusion is supported by the following reasoning: * The high quality of architectural design, materials and details achieved in the articulated building form proposed; * That the form of the building, while an alternative to that envisaged by DCP 2013, is complementary to the development of the remainder of the K6 site in a manner consistent with the DCP 2013 controls. Further, that this development application does not impact the ability of the remaining lots in K6 achieving the building envelope, and development yield, envisaged in DCP 2013. * The form and external appearance of the development will improve the quality and amenity of the public domain; * The development will not detrimentally impact on view corridors and the development will provide a landmark building of the kind envisaged by the controls for K6 in DCP 2013; and * The way the development addresses the following matters: "(i) the suitability of the land for development, providing for more affordable housing choice on a major new transport corridor in good proximity to the nearby UNSW campus in accordance with the uses permitted by the planning controls; (ii) existing and proposed uses and use mix, providing a permissible use that will activate the K2K corridor in the manner required by the DCP and with a design that manages impacts without imposing a burden on adjacent uses; (iii) heritage issues and streetscape constraints, by providing a high quality design for the streetscape including high quality activating of Anzac parade in the manner consistent with the desired future character sought by the DCP; (iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, by providing an urban form that has a good overall alignment with and achieves the desired future character of the DCP (despite some departures); (v) bulk, massing and modulation of buildings, by providing a high quality, slender and well articulated tower form, skilfully positioned to allow for a future building on the site to the south to seamlessly integrate with its form or to stand alone with good separation distances, either of which options will deliver on the intent of the DCP for an iconic building form to mark the K6 strategic node, (vi) street frontage heights, by delivering high quality well articulated street frontage heights consistent with the DCP desired future character; (vii) environmental impacts such as sustainable design, overshadowing, wind and reflectivity, through a range of means detailed in the BASIC certificate; (viii) the achievement of the principles of ecologically sustainable development, through a range of means including as noted above the range of means detailed in the BASIC certificate and through the provision of lower cost and housing choice on a major transportation corridor near to existing services and the UNSW campus; (ix) pedestrian, cycle, vehicular and service access and circulation requirements, by providing a high quality building design consistent with the desired future character including clear pedestrian entries with direct access to the street and reduced carparking compared to other uses such as residential which is appropriate for the location on a major new transport line; (x) the impact on, and any proposed improvements to, the public domain, by providing new activating uses and an improved public domain interface compared to the existing development on the site, (xi) whether the building meets sustainable design principles in terms of sunlight, natural ventilation, wind, reflectivity and resource, energy and water efficiency, through a range of means including as noted above the range of means detailed in the BASIC certificate, and including good solar access to a high proportion of rooms and high quality communal spaces with excellent amenity, options for outdoor clothes drying, and narrow building depths with good natural ventilation, (xii) visual and acoustic privacy and safety and security of the building, by means including well designed rooms with good outlook to the public domain, good separation distances and setbacks that ensure good acoustic and visual separations and small tower footprints that minimise the number of residents on each floor." (Exhibit 4) 1. In the alternative, after considering the matters at cl 6.11 and 6.21 of LEP 2012, Mr Baker argues that design excellence is not achieved by the proposed development. The key issue raised by Mr Baker is the departure of the proposed development from the K6 building envelope controls in DCP 2013. It is appropriate at this point to detail the variation to these building envelope controls proposed by the development application. 2. The applicable building envelope controls for the whole of the K6 site are modelled in the following block diagram, extracted from DCP 2013: Figure 1: Extract of DCP 2013 1. Node K6 straddles a number of different lots with frontage to Anzac Parade. The entirety of the K6 site is not the subject of the proposed development, the development application encompasses only the two northern most lots of K6. The difference between the preceding block model of the DCP 2013 controls and the proposed development centres on the width of the tower element on the subject site. Essentially, to be fully compliant with DCP 2013, the width of the tower element on the subject site would be 6.5m. This is demonstrated by the following figure which overlays the site boundaries on the DCP 2013 block controls: Figure 2: Extract of the architectural plans 1. The proposed development varies the building envelope controls by extending the width of the tower element (circled in the preceding diagram) closer to the northern property boundary. This results in the tower element having a width of approximately 13m. The increased width is identified in the following extract of the east elevation of the proposed development. The dashed line represents the building envelope controls in DCP 2013. Figure 3: Extract of the architectural elevations 1. Having understood the key variation to the DCP 2013 controls, Mr Baker's evidence argues that design excellence is not achieved by the proposed development on the basis that: * The proposed development will have a negative impact on the public domain. Firstly, due to the exceedance of the building envelope controls in DCP 2013. Secondly, on the basis that the variation to the building envelopes on this node site (K6) will then result in it being of a different form to the building form on adjacent corner sites. Mr Baker concludes that such an outcome would be 'detrimental to the perceived orderly development pattern of the town centre which the DCP 2013 controls seek to achieve'. (Exhibit 4) Mr Baker summarises this issue as follows: "On each of the three node sites, the tower portion of the envelope is set back only 3m from the streets intersecting Anzac Parade (Strachan and Middle Streets). The intention is clear: to concentrate building mass right on the intersection. Emphasising nodes to establish their importance in the built form of a town centre, and signify the location of public transport… If the proposal is approved, the implication of modifying the K6 envelope would extend beyond the K6 site. For consistency, the K5 and K7 envelopes would also have to be changed." (Exhibit 4) * That the relationship of the proposed development to the existing development to the north (255-271 Anzac Parade) is unacceptable as the tower element is too close to the adjoining property as it is only set back 7.6m from the northern boundary and is of a greater height than that proposed by DCP 2013. * Whether the building meets sustainable design principles in terms of sunlight, ventilation, wind, reflectivity, visual and acoustic privacy, et cetera. In his evidence, Mr Baker argues that the façade design adequately addresses the solar load experienced on the Western facade of the building. In his view this would result in rooms with this orientation being very uncomfortable on summer afternoons. (Exhibit 4) 1. I note that the agreed conditions of development consent incorporate a condition which states: "2 (G) Windows for west facing rooms that do not have balconies or protection from balcony overhangs above must be fitted with operable external some shading devices." The details of how this condition is to be satisfied in the architectural design are required to be approved by the Council prior to the issue of a construction certificate. (Exhibit 7) 1. Relevantly, Mr Baker confirmed in his oral evidence that there was no quantifiable or identified consequences of the DCP 2013 variation in terms of overshadowing, energy, privacy, bulk presentation, or scale transition that arise from the proposed development as amended. 2. In response to Mr Baker's evidence, and in particular the issues that the tower occupies, an area of the northern part of the site that was not envisaged by DCP 2013. Mr Mead argues that the built form is acceptable on the following reasoning: "4.11. … The intent of the controls is to provide transition to the existing building to the north which is 9 storeys in height. The proposal provides this transition, stepping in height, and by staggering the front setback at the north-eastern corner of the development to transition back to the existing south-eastern corner of the neighbouring building. The proposal provides a larger setback than the DCP requires to Anzac Parade to do this. … 4.14 In the circumstances, it is my opinion that variation to the DCP height control is justified. Rigid application of the DCP controls to the site would result in an inferior built form solution, with a narrow tower format, inefficiently small floor plate, that does not respond to actual site circumstances. In my opinion, the proposal takes an acceptable approach, consistent with the "alternative design" approach contemplated by Control (d) in Section 6.1. " (Exhibit 4) 1. In the joint report, Mr Turisi notes that additional shadow diagrams were tabled as part of the joint conferencing process. He notes that these demonstrate direct sunlight will be available for two hours to the boarding rooms. He concludes that given the nature of the proposed use of the boarding rooms and the extensive communal areas provided in the building, the level of solar energy in the proposed development is acceptable. (Exhibit 4) 2. Further, Mr Turisi also accepts that the proposed building form and the variation to the building envelope for K6 in DCP 2013, does not prejudice the development of the remainder of the case 6 site in accordance with the controls either in LEP 2012 or DCP 2013. The development exhibits design excellence 1. I accept the evidence of Mr Mead and Mr Cadogan that the proposed development exhibits design excellence. In reaching this conclusion, I have given consideration to the matters in cl 6.11(4) of LEP 2012 and the evidence of the experts summarised earlier in this judgment. I am satisfied that the precondition at cl 6.11(3) of LEP 2012 is met by the proposed development. Clause 6.11(3) of LEP 2012 1. In relation to the specific matters listed at cl 6.11(4) of LEP 2012, I make the following comments in support of my finding of satisfaction. 2. I am satisfied that the proposed development is of a high standard of architectural design and incorporates materials and detailing that is appropriate to the location of the site and the architectural language of the building design. I note that none of the urban design or planning experts in the proceedings identify any matters that would support an alternative conclusion on the merit of the design, material or detailing of the proposed development. 3. I have reviewed the Design Statement pursuant to State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development prepared by Turner Architects along with the plans and other material before the Court. I am satisfied that the recessed shopfronts on the ground floor fronting Anzac Parade, the stepped façade, and building awning proposed will firstly provide an improved urban experience for pedestrians and secondly provide shading in the façade for architectural and streetscape interest. Further, the use of a brickwork two storey parapet will provide a positive visual connection between the proposed building and the existing building character of the precinct. On balance, I am satisfied that the proposed development will achieve an improvement in the amenity and experience of the public domain. These elements can be seen in the following perspective prepared by the Applicant: Figure 4: Extract of the photomontage 1. I am not persuaded by Mr Baker's evidence that a variation to the built form controls for K6 in DCP 2013 is sufficient to be inconsistent with a conclusion that the development achieves an acceptable relationship with the neighbouring sites. 2. I am satisfied on the evidence that the form of the development, its scale and materiality will affect an improvement to the public domain of the site and the streetscape in proximity to it. I accept and prefer Mr Mead's evidence at [68, 69,74]] in this regard. I am not persuaded that the minor variation to the built form controls sought by the development application hinder the achievement of a quality public domain. In my view, Mr Baker places too great a weight or emphasis in his evidence on the provisions of DCP 2013. I accept that the specific controls prepared for the Kensington and Kingsford town centres have undergone a detailed and thorough process with the aim of leading a quality urban renewal of this precinct. So much is clear from a reading of Part E6, Part A: Introduction of DCP 2013. The process undertaken in preparation of the planning controls in DCP 2013 lend weight to the consideration of the DCP 2013 provisions: Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [87]. 3. However, s 4.15(3A)(b) of the EPA Act relevantly provides the following guidance as to the role of development control plans: (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. Accordingly, as noted in Tomasic v Port Stephens [2021] NSWLEC 56 at [36]: 'Although the provisions of a development control plan need to be fundamental elements and focal points in the decision-making process, there may be alternative solutions to achieve the objects of the provisions'. 2. In my view, the proposed development is such an alternative solution. The objectives of the relevant control sought to be varied by the Applicant are: "Objectives - To ensure design excellence and provide for the redevelopment that addresses the future desired character and cohesiveness of the Precinct. - To provide taller landmark buildings that respond sensitively to the scale, proportions, form and detailing of nearby heritage, contributory buildings and other properties. - To provide for high quality development comprising a mix of uses including commercial, residential. Innovation spaces, retail and cultural facilities. - To ensure the Anzac Parade façade retains a human scale with strong vertical articulation and fine grain character. - To provide excellent pedestrian amenity through continuous awnings and high quality well landscaped public domain." 1. I am satisfied that the proposed development achieves these objectives despite the variation of the tower width. Firstly, I accept the evidence of Mr Mead and the Design Statement of Turner Architects that strict application of the controls, resulting in a 6.5m wide tower, is neither a feasible outcome nor one that is consistent with the desired future character of the Kensington Midtown precinct as defined in DCP 2013. Secondly, on the agreed evidence of the experts, the variation does not preclude the redevelopment of the remaining sites in the K6 node in the landmark form sought by the DCP 2013. I am not persuaded the variation prejudices the relationship of the subject site to the future or existing built form on the adjoining or proximate properties. 2. Plainly, the development provides for a mix of uses consistent with the third objective. 3. Further, I am satisfied that beyond retaining a human scale, the development will improve the human scale and fine grain character of Anzac Parade through both the architectural presentation of the ground floor of the building along the awning and public domain works. The variation proposed has no direct impact on the achievement of this objective. I note that no expert, or evidence in the proceedings, identifies any direct adverse impacts arising from the variation to the development control. 4. For these reasons, I am satisfied it is appropriate to apply the flexibility provided by s 4.15(3A)(b) of the EPA Act and vary the built form controls contained in Part E6 of DCP 2013 relevant to site K6. Having accepted the merit of the variation, I prefer Mr Mead's evidence, summarised at [84] over that of Mr Baker on the merit of the departure of the development application from DCP 2013. 5. Finally, in his evidence, Mr Baker argues that the grant of a variation to the built form controls on the K6 building envelope would affect or require the variation of the built form controls on the adjacent nodes of K5 and K7. I am not persuaded by this argument for the following reasons: * Firstly, when examined, the built form controls for K5 and K7 in DCP 2013 are in fact a replica of those for K6. Put another way, even if this development application strictly conformed to the built form controls for K6, the resulting built form would not be replicated on the remaining node sites. In fact, the planning controls for all four nodes show a varied built form response, reflective of the specific characteristics of those locations. They share a planned emphasis on the corners or intersections with Anzac Parade. I am satisfied that this emphasis will remain despite the variation sought by this development application. 1. As noted at [81], Mr Baker argues that the proposed development is inconsistent with the matter for consideration at cl 6.11(4)(d) of LEP 2012 on the basis of the lack of appropriate sun control on the western elevation of the proposed building. I am satisfied that such concerns are appropriately addressed by the proposed condition and are insufficient to establish that the subject design does not achieve design excellence as required by cl 6.11(3) of LEP 2012. 2. Finally, I accept the uncontested evidence of Mr Mead and Mr Cadogan that the proposed development will have no impact on either view corridors or landmarks in the relevant locality. Clause 6.21(3) of LEP 2012 1. As noted at [73], the first three matters for consideration at cl 6.21(4) of LEP 2012 replicate those listed at cl 6.11(4) of LEP 21012. I adopt my findings in relation to those matters without replication. 2. I further note that in his evidence Mr Baker raises no specific concerns in regard to the additional matter for consideration under cl 6.21(4) of LEP 2012. Relevantly, the Respondent does not contend that the matters at cl 6.21(4) give rise to a conclusion that the proposed development does not exhibit design excellence. (Exhibit 6) 3. In determining whether the development exhibits design excellence pursuant to cl 6.21 of LEP 2012, I have had regard to the matters listed at subcl (4)(d). I am satisfied that the land is suitable for the proposed development, a conclusion that is supported by the planning provisions specifically relevant to the Kensington to Kingsford Precinct in both LEP 2012 and DCP 2013. I accept the evidence of Mr Mead and Mr Cadogan in relation to the manner in which the development addresses the remaining factors listed at subcl (4)(d) and find that none weigh against a finding of design excellence. 4. I find that the proposed development exhibits design excellence and that the preconditions at cll 6.11(3) and 6.21(3) of LEP 2012 are met. A competitive design process was not undertaken, but is unnecessary 1. As noted at [61] the second precondition at cl 6.21(5) of LEP 2012 states: (5) Development consent must not be granted to the development to which this clause applies unless a competitive design process has been held in relation to the proposed development. 1. It is agreed between the parties that no such competitive design process was undertaken for the subject site. The term 'competitive design process' is defined in subcl (9) as: competitive design process means an architectural design competition carried out in accordance with procedures approved by the Planning Secretary. 2. Clause 6.21 at subcl (7) provides an exception to the requirements of subcl (5) as follows: (6) A competitive design process is not required under subclause (5) if the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances of that development. 1. Mr Astill, for the Respondent, argues that the Court would conclude that the requirement for a competitive design process is not unreasonable or unnecessary in the circumstances of the development on the following grounds: * That at least three relevant circumstances of the development support the requirement for a competitive design process being reasonable and necessary, those being that: firstly, the site is nominated as a key, or node, site in the planning instruments; secondly, that the development proposed is of a substantial scale; and finally, that the Applicant has not established that there are specific circumstances that give rise to an exception to the requirement. * The clause does not exclude the need for a competitive design process merely by the achievement or a finding of design excellence under either cl 6.11 or 6.21 of LEP 2012. * The competitive design process envisaged by cl 6.21(5) of LEP 2012 is not equivalent to the review process that has been undertaken by the Applicant. It is of a different character. Namely, the review process was not conducted independently of the Applicant, nor did it seek the concurrent preparation of independent designs from architects for the subject site. Rather, the Applicant's process focussed on critique and refinement of a specific design. 1. Further, the Respondent argues that the Court should take a narrow view of the term 'circumstances of the development' in cl 6.21(6) of LEP 2012. Namely, that the relevant circumstances are only those that are the physical and statutory planning context of the site. Mr Astill submits that a finding that a development exhibits design excellence cannot properly be seen as a circumstance of the development. 2. In the alternative, the Applicant argues that the Court would be satisfied that the precondition at cl 6.21(5) of LEP 2012 is met on principally two grounds. The Applicant's submissions summarise these grounds as firstly, "It is unreasonable or unnecessary to hold such a competitive process because the alternative process has, as a process, subjected the development design to a level of scrutiny at least the same as, and greater, than a competition" and secondly because the design does exhibit design excellence. (Applicant's written submissions 4 March 2022) 3. In relation to the first factor, Mr To argues that the peer review process adopted by the Applicant allows the input of additional experts into the design process and challenges the architectural approach to the site in a manner that does not occur in a design competition. Mr To concludes on this basis that the Applicant's process can been seen as more rigorous. 4. Mr To submits that the following factors also support a conclusion that a design competition is unnecessary or unnecessary. He states: "32.1 The design of the development started before amendments to RLEP in late 2020 introduced design competition requirements. 32.2 The design of the proposal on the site was developed, iteratively, both by the project architect and upon critical review by two independent architects. 32.3 The design was then again independently critiqued by three architects comprising the Randwick Design Excellence Panel." (Applicant's written submissions 4 March 2022) 1. In reply to the Respondent's argument that a design competition may have generated different designs, Mr To relies on Mr Mead's oral evidence that such an outcome would be unlikely given the prescriptive nature of the design brief which would emphasise and incorporate the planning and build form envelope controls of DCP 2013. He notes that Mr Mead concluded that the likely differences between entries would be in architectural expression and internal layout, not overall built form. (Applicant's written submissions 4 March 2022) 2. Mr To concludes that on Mr Mead and Mr Cadogan's evidence the Court would find that it is unreasonable or unnecessary to hold a design competition, meeting the requirement of cl 6.21(6) of LEP 2012. Findings 1. Consistent with the findings of Dixon C, as she then was, in MGT 6 Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1211 at [86] and Walsh C in One Forty William Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1290 at [60], I find that in circumstances where I find that the proposed development exhibits design excellence, it is open to the Court to be satisfied by the operation of subcl (6) that the requirement for competitive design process is unreasonable or unnecessary. At [106], I found that the proposed development exhibits design excellence, I am satisfied that such a characteristic is a circumstance of the development that makes the holding of a competitive design process unnecessary: cl 6.21(6) of LEP 2012. My reasoning follows: * I am satisfied that it is open to me to conclude that a finding of design excellence of the development proposed is a circumstance of that development, * Applying the reasoning in Wehbe v Pittwater (2007) 156 LGERA 446; [20007] NSWLEC 827 at [42]-[43], I have given weight to the fact that such LEP provisions or requirements are not ends in themselves, but rather a means of achieving environmental or planning objectives: "42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: [citations omitted] 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served)." * The objective of cl 6.21 of LEP 2012 is "… to ensure that development exhibits design excellence that contributes to the natural, cultural, visual and built character values of Kensington and Kingsford town centres." * I am satisfied, for the reasons detailed earlier in this judgment, that the proposed exhibits design excellence, thus meeting the objective of cl 6.21 of LEP 2012 notwithstanding that the requirement at subcl (5) to hold a competitive design process was varied by the Applicant. 1. For the proceeding reasons, consistent with subcl (6) of cl 6.21 of LEP 2012, I am satisfied that the competitive design process required under subcl (5) is unnecessary in the circumstances of the proposed development. The development is consistent with the planning intent for the Kensington to Kingsford precinct 1. The final contention advanced by the Respondent is that the form of the proposed development is inconsistent with the planning intent for the Kensington to Kingsford Precinct for two reasons. Firstly, on the basis of the variation to the building envelope controls discussed earlier in the judgmentand secondly, on the basis that the proposed development is not compatible with the desired future character of the local area as a result of its height, bulk, scale and insufficient setbacks. 2. DCP 2013 describes the desired future character of the Kingsford Mid town precinct, the location of the subject site, as follows: "Kingsford Midtown Precinct Desired Future Character The Kingsford Mid-Town Precinct is located in the old heart of Kingsford town centre and comprises the strategic node sites referred to as K5, K6 and K7. Built form and building heights in this precinct will be carefully considered to achieve good amenity and respond to surrounding historic buildings, while ensuring a fine grain character is retained. Tall, slender well-articulated buildings at K5, K6 and K7 will be generally up to 18 storeys in height, exhibiting design excellence and emphasising the mid-town role of this Precinct. Buildings on the eastern and western edge of the Precinct will be scaled down to 5 storeys in conjunction with a 2m ground floor building setback to encourage mews style development and achieve a height transition to adjoining lower scale neighbourhoods. New development will reinforce a four-storey street wall along Anzac Parade to facilitate a fine grain civic scale. A minimum 2.5m building setback along Anzac Parade will create a comfortable pedestrian environment enhanced by awnings, street trees, landscaping, lighting and street furniture. The historic fabric of the Precinct will be respected and celebrated with new built form designed to achieve a harmonious relationship with historic buildings, including O'Deas Corner, and nearby contributory buildings in terms of scale, form and detailing. An upper level setback of 6.5m for contributory buildings will maintain the form and articulation of historic frontages. Kingsford Midtown will be a focus for innovation, cutting edge design and sustainability. The provision of an innovation hub at K5 will accommodate start-ups, incubators and creative industries, fostering strong synergies with the University of NSW nearby. The Precinct will continue to maintain the strong convenience retail and dining role of the wider Kingsford Town centre, reflected by a diverse range of shops, cafes and restaurants. Active uses on the ground floor of buildings along Anzac Parade and Strachan Street will increase the vibrancy of the Precinct and wider town centre. The precinct will have a vibrant evening economy, building up upon its distinct Asian dining character with active shop fronts, high quality public realm and street life that encourages people to mingle and meet. Footpath dining will be encouraged along Strachan Street with footpath widening and street trees providing a high level of amenity. The greening of this Precinct with boulevard trees, landscaping and linear links to Kensington Park will contribute to the liveability of this Precinct, making it a place where people want to live, work and visit." 1. As detailed at [91-99], I am satisfied that the proposed development is consistent with the objectives of the Kingsford Mid town precinct despite the variation to the built form envelope controls. One of those objectives is: 'To ensure design excellence and provide for redevelopment that addresses the future desired character and cohesiveness of the Precinct'. Having found that the development meets this objective, and exhibits design excellence, it follows that I am not persuaded that the Respondent's contention that the development is incompatible with the desired future character of the precinct is made out. 2. I am satisfied that the proposed development is compatible with the desired future character of the Kingsford Mid town precinct as expressed in DCP 2013. Conclusion 1. After an assessment of all the evidence under s 4.15 of the EPA Act including the evidence of the objectors, I am satisfied that the amended development application is acceptable on its merits. In my opinion the development application warrants approval subject to the annexed conditions. Orders 1. The Court orders that: 1. The appeal is upheld; 2. Development consent is granted to development application DA/489/2020 for demolition of existing structures, construction of a part 5, part 16 storey mixed use development over basement carparking at 273-275 Anzac Parade Kingsford (Lot 1 DP129966 and Lot 1 DP940263), subject to the conditions of consent in Annexure A. 3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent that are thrown away as a result of the amendment of Development Application DA/489/2020 as agreed or assessed. 4. Exhibits are returned with the exception of Exhibits A, E and 6 which are to be retained. .………………………… D M Dickson Commissioner of the Court Annexure A.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: 24 May 2022