Land and Environment Court New South Wales Medium Neutral Citation: JY Crown Pty Ltd v Inner West Council [2023] NSWLEC 1081 Hearing dates: 2, 3 August, 2, 3 November 2022 Date of orders: 24 February 2023 Decision date: 24 February 2023 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is dismissed. (2) Development application DA2021/0727 seeking consent for demolition of the existing buildings and construction of shop top housing (ground floor retail and five levels of residential development), the creation of a pedestrian link between Parramatta Road and Redmond Street proposed at 305-313 Parramatta Road Leichhardt (Lot 2 DP 303623 and Lot B DP 158093) is determined by the refusal of consent. (3) The exhibits are returned with the exception of Exhibits 1, A, B. Catchwords: DEVELOPMENT APPLICATION – development for the purposes of shop top housing – Parramatta Road corridor – variation to floor space ratio sought – voluntary planning agreement proposed – compatibility of the development with the desired future character – precondition to the grant of consent not satisfied – appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2000 cl 55 Inner West Local Environmental Plan 2022 cl 1.8A Leichhardt Local Environmental Plan 2013 cll 2.3, 4.4, 4.4A, 4.6, 6.11, 6.11A Cases Cited: Big Property v Randwick City Council [2021] NSWLEC 1161 Direct Factory Outlets Homebush v Strathfield Municipal Council [2006] NSWLEC 318 Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438, 441 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Terrace Tower Holdings v Sutherland Shire Council [2003] NSWCA 289 Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 Texts Cited: Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: JY Crown Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: M Staunton (Applicant) A Hemmings (Respondent) Solicitors: M Jaku, Jaku Legal (Applicant) S Turner, Inner West Council (Respondent) File Number(s): 2021/0302851 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by the Applicant against the deemed refusal of their development application (DA2021/0727) by Inner West Council. The Applicant filed a Class 1 Application, appealing the refusal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). As amended the development application seeks consent for demolition of the existing buildings and construction of shop top housing. The development includes basement parking and services, ground floor retail premises fronting Parramatta Road and Hay Street, the creation of a pedestrian link between Parramatta Road and Redmond Street and five levels of residential development (31 units). The development is proposed at 305-313 Parramatta Road Leichhardt (Lot 2 DP 303623 and Lot B DP 158093). 2. On 26 May and 3 August 2022, the Court granted leave to the Applicant to amend their development application pursuant to the provisions of the then cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). 3. Further, the Applicant sought and was granted leave to amend their development application on 2 November 2022 by the substitution of architectural plans and updated written requests to vary the development standards in cll 4.4, 4.4A and 6.11 of Leichhardt Local Environmental Plan 2013 (LEP 2013). 4. The amended development application seeks consent for: * Demolition of the existing buildings, * Site consolidation * Construction of shop top housing development with two basement levels containing car parking, motorcycle parking, bicycle parking spaces, storage and services, waste storage, ground floor level retail premises fronting Parramatta Road and Redmond Street, waste storage rooms, bicycle storage, and an external loading/ waste collection are, 5 residential levels containing 31 residential dwellings and communal open space on the northern part of the roof. (Exhibit 1) 1. The development application includes an offer to enter into a voluntary planning agreement for the dedication of some 96.49m² of land to affect a widening of the rear laneway. 2. Despite the Applicant's amendments, the Respondent maintains that the development warrants refusal on the following grounds: 1. The bulk and scale of the development is excessive and is not compatible with the form and scale of development in the locality or the desired future character as defined by a 2-3 storey built form to Parramatta Road. The development is contrary to cl 6.11A of LEP 2013 and the objectives and controls that direct desired future character of development in the locality under Leichhardt Development Control Plan 2013 (DCP 2013). 2. The written request to contravene the Floor Space Ratio (FSR) development standard in cl 4.4A Exceptions to maximum floor space ratio for active street frontages of LEP 2013 is not supported. 3. The residential units central to the development have poor outlook, visual and acoustic amenity. 4. Central units and balconies at Level four and five, and units to the rear of the development, do not have adequate setback to the eastern boundary. The inadequate setback results in poor residential amenity and may impact on the redevelopment potential of 297-303 Parramatta Road. 5. The development does not achieve adequate solar access to the proposed residential units. 6. The development has balconies and bedrooms fronting Parramatta Road resulting in poor acoustic amenity to these residential units. 7. The development is not a suitable design, built form or scale of development on the Parramatta Road corridor contrary to urban design principles. 8. There is insufficient information to assess the development application. (Exhibit 1) 1. During the assessment of the development application the Inner West Local Environmental Plan 2022 (LEP 2022) was gazetted. However, the parties agree and I accept that the applicable local environmental plan remains LEP 2013 as cl 1.8A of LEP 2022 states: If a development application has been made before the commencement of this plan in relation to land to which this plan applies and the application has not been finally determined before that commencement, the application must be determined as if this plan has not commenced. 1. Given the preceding, LEP 2022 is a relevant draft instrument for the purpose of s 4.15(1)(a)(ii) of the EPA Act. Site and Locality 1. The site is legally described as Lot 2 in DP 303623, known as 305 Parramatta Road, Lot B in DP 158093, known as 307-309 Parramatta Road and Lot A in DP 158098 known as 313 Parramatta Road. 2. The Site is located on the northern side of Parramatta Road Leichhardt between its intersection with Catherine Street (east) and Hay Street (west). The north east corner of the site adjoins the lane access to the Hay Street car park. The width of the lane at the rear is approximately 5m. 3. The Site is located within the Parramatta Road Heritage Conservation Area (C2) and is in the vicinity of the Albert Palais, Heritage Item 684 listed as a local heritage item under the LEP 2013 . The residential dwellings at 8-16 Catherine Stret, to the rear of the proposed development, are also listed heritage items under LEP 2013. 4. The following aerial image shows the Site and its locality: 1. The definition or extent of the local area, its existing character and its desired future character were the subject of expert evidence and submissions in the proceedings. Public Submissions 1. The development application was notified by the Respondent on two occasions. Firstly, from 2 September to 1 October 2021 and again in August 2022 following the amendment of the application. The issues raised in submissions can be summarised as follows: * That the application presupposes that the Planning Strategy for Parramatta Road has been adopted. * The proposed design does not comply with the Council's applicable planning controls. * The design is of excessive bulk, scale and height and will be overwhelming and looming for adjoining properties. * The plans are unclear as to the retention or demolition of existing walls. * Demolition and construction will have significant amenity impacts on neighbours and local traffic. * There is potential for asbestos, or other contaminants to be discovered during demolition, excavation and construction. * The roof top communal open space will result in unreasonable privacy impacts by overlooking to adjoining properties. * The plans do not accurately depict the built form and structures on neighbouring properties. * The proximity of the residential units and their balconies to the common boundary will result in unreasonable acoustic impacts to adjoining neighbours. * There is a lack of detail as to the proposed treatment or protection of the common party wall for the basement car park. In particular no details are provided that demonstrate how the party wall will be protected during excavation below its foundations. * Concern that adjoining properties will be damaged during construction. The resident requests that a requirement for vibration monitoring and dilapidation reports before and after construction be required as a condition of any approval. * The appearance of the development is not compatible with the character of the area, in particular the objectives of the heritage conservation area. * The residential units will result in overflow parking in the adjoining local streets which already lack capacity to accommodate on street parking demand. * The loading space and the vehicles accessing the loading facilities will detrimentally impact on Redmond Street. Jurisdictional prerequisites 1. The Site is within the B2 Local Centres zone under LEP 2013. Shop Top Housing is a use permitted with consent in the zone. Clause 2.3(2) of the LEP 2013 provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the B2 Local Centres zone are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To ensure that development is appropriately designed to minimise amenity impacts. • To allow appropriate residential uses to support the vitality of local centres. • To ensure that uses support the viability of local centres. • To provide a mixture of compatible land uses. • To reinforce and enhance the role, function and identity of local centres by encouraging appropriate development to ensure that surrounding development does not detract from the function of local centres. • To integrate suitable business, office, residential, retail and other development in accessible locations. 1. In determining the development application I have given consideration to these zone objectives. 2. Clause 6.11A of LEP 2013: Residential accommodation in zone B1 and zone B2 applies to the development application. This clause contains a precondition that must be satisfied in subcl (3) as follows: (3) Development consent must not be granted to development for the purpose of residential accommodation on land to which this clause applies unless the consent authority is satisfied that— (a) the building comprises mixed use development, including residential accommodation, and (b) the building will have an active street frontage, and (c) the building is compatible with the desired future character of the area in relation to its bulk, form, uses and scale. 1. The satisfaction of this clause is discussed in the following, commencing at [17]. 2. The development application seeks to vary the following development standards through the satisfaction of the preconditions contained in cl 4.6 of LEP 2013: 1. Clause 4.4: FSR. Pursuant to cl 4.4(2) of LEP 2013 the relevant maximum FSR which applies to the land is 1.5:1. The development application seeks an FSR of 2.86:1. 2. Clause 4.4A provides an exception to maximum FSR at cl 4.4(2) of LEP 2013 for active street frontages. This clause applies to the development application as the site is land identified as "Area 1" on the Floor Space Ratio Map. It provides a maximum FSR of 1.5:1 if the conditions at subcl (3) of the provision are met. * Subclause (3) of cl 4.4A provides as follows: (3) Despite clause 4.4, the maximum floor space ratio for a building on land to which this clause applies is 1.5:1 if the consent authority is satisfied that— (a) the building will have an active street frontage, and (b) the building comprises mixed use development, including residential accommodation, and (c) the building is compatible with the desired future character of the area in relation to its bulk, form, uses and scale. * The development application seeks an FSR of 2.86:1. (Exhibit 6) 1. Clause 6.13: Diverse Housing. This clause applies to the development as it is a shop top housing development proposing more than four dwellings. At subcl (3) the provision provides: (3) Development consent must not be granted to development to which this clause applies unless— (a) at least 25% of the total number of dwellings (to the nearest whole number of dwellings) forming part of the development will include self-contained studio dwellings or one-bedroom dwellings, or both, and (b) no more than 30% of the total number of dwellings (to the nearest whole number of dwellings) forming part of the development will include dwellings with at least 3 bedrooms. 1. The development application seeks to vary the minimum requirement for studio and one bedroom dwellings at subcl (3)(a) of the provision by seeking to provide 16% of the total number of dwellings in lieu of the 25% standard. (Exhibit B) 1. The satisfaction of these preconditions to consent are discussed in the following. Is the precondition at cl 6.11A of LEP 2013 satisfied? 1. As noted at [17] the precondition at cl 6.11A applies to the development application. That is because the development application is for residential accommodation (shop top housing) on land that is zoned B2 Local Centre. 2. The amended Statement of Environmental Effects makes the following comments specifically referrable to this provision: 'The proposal provides for a retail tenancy fronting Parramatta Road and a retail tenancy fronting Remond Street which is the primary frontage of the site and satisfies the requirement for an active street frontage in accordance with the provisions of this clause.' (Exhibit B) 1. The precondition to consent contained at subcl (3) requires the consent authority to be satisfied of three matters. Firstly, that the development comprises mixed use development, including residential accommodation. Secondly, that the building will have an active street frontage as defined. Thirdly, that the building is compatible with the desired future character of the area in relation to its bulk, form, uses and scale. 2. I find that the first matter at subcl (3) is satisfied as follows: Mixed use development is defined by LEP 2013 as: 1. mixed use development means a building or place comprising 2 or more different land uses. 1. The proposed development seeks consent for 'shop top housing' which, as defined in LEP 2013, is a form of residential accommodation. Further, the definition requires dwellings to be located above commercial premises. I am satisfied that the proposed development is a building comprising of two different land uses: residential accommodation; and commercial premises. 2. I find that the second matter at subcl (3) is satisfied as follows. Active street frontage is defined in cl 6.11A(4) of LEP 2013 as follows: (4) In this clause, a building has an active street frontage if all floor space on the ground floor of the building on the primary street frontage is used for a purpose other than residential accommodation (with the exception of areas for access or service purposes). 1. The primary street frontage for the development is Parramatta Road. By reference to the architectural plans in Exhibit B I note that, with the exception of the 1.5m wide pathway through the site, the entire frontage is proposed to be used for a purpose other than residential, in this case retail premises. I am satisfied the requirement for the development to have an active street frontage is met. 2. The final requirement subcl (3) is that the consent authority must be satisfied that the building is compatible with the desired future character of the area in relation to its bulk, form, uses and scale. This consideration was the subject of expert evidence and submissions which are discussed below. Is the building compatible with the desired future character of the area in relation to its bulk, form, uses and scale? 1. The Respondent argues the following planning controls in DCP 2013 are relevant to determine the desired future character of the area. * Part C3.2 – Site Layout and Building Design Objectives O1 To ensure adequate separation between buildings for visual and acoustic privacy, solar access and air circulation. O2 To ensure the character of the existing dwelling and/or desired future character and established pattern of development is maintained. O3 To ensure that buildings are constructed within an appropriate Building Location Zone (BLZ) from the front and rear boundary to protect neighbourhood features such as streetscape, private open space, solar access and views. O4 To ensure that development: a. reinforces the desired future character and distinct sense of place of the streetscape, neighbourhood and land where this DCP applies; b. emphasises the street and public domain as a vibrant, safe and attractive place for activity and community interaction; c. complements the siting, scale and form of adjoining development; and d. creates a high level of residential amenity for the site and protects existing or enhances residential amenity of adjoining sites in terms of visual and acoustic privacy, air circulation, solar access, daylight, outlook and views. Controls Local character C2 Development siting and design shall respect and enhance the natural landscape attributes that contribute to the character and distinct sense of place of the streetscape, neighbourhood and land where this DCP applies, including: a. prominence of ridgelines; b. landmarks; c. topography; d. views, vistas and outlooks; e. waterways; and f. vegetation. * Part C2.2.3.5 – Leichhardt Commercial Distinctive Neighbourhood Desired Future Character Objective O1 To facilitate development that is consistent with the Desired Future Character and Controls for the Leichhardt Commercial Distinctive Neighbourhood. Controls C1 Maintain the character of the area by keeping development complementary in architectural style, form and materials. … C4 Promote land uses and urban design that enhance and contribute to the character and identity of the neighbourhood whilst protecting Heritage Items and Heritage Conservation Areas that combine to help create that character. … C13 Building wall height is to be a maximum of 3.6m, unless an alternate building wall height is prescribed under sub area controls. * Part C1.18 Laneways Objectives O1 Development: a. respects the existing and desired future use, form and character of the laneway consistent with the laneway hierarchy as shown in Table C11 Laneway hierarchy; b. achieves an appropriate level of amenity, access, security and landscaping; and c. enhances the permeability of the neighbourhood by providing direct, safe and attractive pathways for vehicles, pedestrians and cyclists. Controls C4 Buildings adjacent to a laneway have a simple form and minimal façade detailing. C5 Where fronting a Narrow Lane, (refer to Table C11 Laneway hierarchy) development shall comply with a laneway envelope that has: a. a maximum side wall height of 3m; b. a 450 building envelope taken from the top of the side wall; and c. a maximum roof height of 5m (refer to Figure C14 Laneway envelope for development fronting a Narrow Lane). … 1. The term desired future character is not a defined term in LEP 2013 and was the subject of expert evidence. 2. The Court was assisted by evidence from town planning experts Mr Gary Chapman for the Respondent and Mr Andrew Darroch for the Applicant. These planning experts conferenced with the urban design experts Mr Rohan Dickson for the Respondent and Mr Geoff Bonus for the Applicant. The experts prepared a joint report which was marked as Exhibit 6. The experts were also called for cross examination. I have read and considered the experts evidence in the joint report and their oral evidence. The following is a brief summary of their evidence as relevant to the test at cl 6.11(3)(c) of LEP 2013. 3. In his evidence Mr Darroch concludes that the proposed development is compatible with the desired future character of the area. His reasoning can be summarised as follows: * Recent approvals on Parramatta Road have well exceeded the 1.5:1 FSR control, those being approvals at 305 Parramatta Road, 447 Parramatta Road and 1-13 Parramatta Road. * No height control applies to the area under LEP 2013. * The subject site has an active approval for 24 residential apartments with an approved FSR of 2.05:1 * The Parramatta Road Corridor Urban Transformation Strategy (PRCUTS) has applied to the subject site for six years and set an FSR of 3:1 for the area. * PRCUTS has been utilised by Inner West Council in preparation for an amendment to LEP 2022 (LEP Amendment). That LEP Amendment proposes to rezone the Parramatta Road corridor to a height of 23m with an FSR of 3:1. * The recent approvals noted at point one are outside the bounds of the LEP Amendment. * The subject site is outside the bounds of the LEP Amendment. However, Council has noted in the planning report associated with the LEP Amendment that there are additional residential and employment opportunities outside its bounds which will be realised by future amendments to LEP 2013. The LEP Amendment implements PRCUTS. * The development application has a maximum height of 24.8m and an FSR of 2.86:1, consistent with the controls proposed in the LEP Amendment. * That the Court should follow the reasoning in Big Property v Randwick City Council [2021] NSWLEC 1161 ('Big Property v Randwick') given it is apparent that the Council has accepted a four storey podium fronting Parramatta Road frontage for the block between Catherine Street (east) and Hay Street (west). * The recent approvals listed at dot point one have set the desired future character of the area and that the form of the proposed development is compatible with that desired future character. * That the area relevant for the consideration of compatibility with desired future character at cl 6.11A(c) is broader than the area defined by Mr Chapman, and should be expanded to include the bounds of the the recent approvals of 305 Parramatta Road, 447 Parramatta Road and 1-13 Parramatta Road. 1. Mr Darroch's evidence is supported by the evidence of Mr Bonus who concludes that: 2.2.13.7 This proposal will be the first new building to be built with that portion of Parramatta Road bounded by Catherine and Hay Streets. It will be different to the immediate neighbours on either side, as indicated by the existing and proposed photomontages provided by David Murgatroyd. However, it will fit within the future context of 4 storey street wall plus 2 storey setback buildings to be built in the future. To reduce the height of this building proposal now to less than the overall building height of 23m, building envelope of 4+2 storeys, or FSR of up to 3:1 that will apply in the future will result in a building different to its immediate neighbours, and at odds with its context. (Exhibit 6) 1. Mr Bonus' reasoning can be summarised as follows: * That the amended development application complies with the planning controls in PRCUTS and the Urban Design Peer Review which was facilitated by Inner West Council as part of the LEP Amendment investigations. Those 'controls' being a six storey overall building envelope, comprising a street wall of four storeys and an upper two storeys which are setback six metres. * That the development application satisfies the test at cl 6.11A(3)(c) of LEP 2013 as the proposal is (emphasis original): '- fully compliant with the future bulk and scale controls contained in the PRCUTS, and - adopts the future built form response recommendation for opportunity site 2 endorsed by Inner West Council Planning Panel in March 2022, and - proposes uses in accordance with the B2 Local Centre zone proposed by the PRCUTS and current applicable under LLEP 2013' * (Exhibit 6) * That the development is consistent with the relevant provisions in DCP 2013 directed to future character which have the following objective: '01 To facilitate development that is consistent with the desired future character controls for the Leichhardt Commercial Distinctive Neighbourhoods'. * Mr Bonus argues that the controls that are relevant to determine the desired future character are those in the PRCUTS and the LEP Amendment. 1. In relation to the rear of the development, the Redmond and Hay Street carpark frontage, Mr Bonus undertook a comparison between the built form envisaged by the Urban Design Peer Review and the development application. He notes: firstly, that the that the Urban Design Peer Review proposed a through site pedestrian link from Parramatta Road to Redmond Street. I note that such a link has been incorporated in the Urban Design Peer Review building envelopes equated to approximately 2.15:1, less than the 3.0:1 nominated in PRCUTS. Thirdly, that the Urban Design Peer Review nominated a lower density of development at the rear of the site, relevantly a four storey built form at a greater setback than that which is proposed by the development application. Finally, that the Parramatta Road frontage in the Urban Design Peer Review is proposed at six storeys, four with zero setback and the upper two at a setback of six metres. 2. Despite these variations between the proposed built envelopes of the Urban Design Peer Review and those proposed by the development application, Mr Bonus concludes that the design proposed by the development application is preferrable on the following grounds: * The under achievement of FSR in the built envelopes of the Urban Design Peer Review is undesirable as it fails to deliver the proposed housing and employment targets of the PRCUTS. * The five storeys proposed by the development application to Redmond Street is acceptable as its street wall will match the height proposed by the Urban Design Peer Review for built form to the north of the lane/cycleway. * In terms of the overall height of the building at Redmond Street frontage Mr Bonus concludes: "2.2.13.17 The PBD Design [the development application] also proposes a transition in height and built form from 6 storeys (4+2) on Parramatta Road to 5 storeys (3+2) to the north elevation of the proposal. In my opinion, as 4 stroeys (3+1) is proposed by Architectus [the peer review] in Redmond Street, this will provide an appropriate transition in building height and scale from Parramatta Road to the future context of Redmond Street. The transition in height and scale this will provide is demonstrated by the images that follow:" (Exhibit 6) 1. I note that Mr Bonus does not address the recommendations of the Urban Design Peer Review in relation to the site amalgamation proposed for the subject site or the proposed straightening of Redmond Street at the rear of the site. 2. In the alternative, Mr Chapman's evidence is that the proposed scale of the development, including a four storey street wall to Parramatta Road, a three storey street wall to Redmond Street and an overall height of six storeys results in a built form which is not compatible with the desired future character. 3. Mr Chapman's evidence can be summarised as follows: * Strict compliance with the 1.5:1 FSR standard is not required on the subject site in the circumstances. However, he argues that the floor area should be reduced as the scale proposed in the development application (four storey street wall to Parramatta Road, three storey rear elevation and six storeys overall) is objectively excessive and remains so even with the documents on which the Applicant relies (the PRCUTS and Urban Design Peer Review) are considered. * That the scale proposed by the development application is out of character with the desired future character and the recent built form of the area, in particular the redevelopment at the corner of Parramatta Road and Philip Street. * That whilst the site is included in PRCUTS, that strategy is not a matter for consideration under s 4.15(1) of the EPA Act and the Applicant places too much weight on the strategy. * That the PRCUTS is relevant, but it gives emphasis to the Norton Street precinct. The subject site is at the edge of the Norton Street precinct and is required to transition to the residential at the rear of the Site (including the listed heritage houses in Catherine Street) and the heritage listed Albert Palais building. * That the Site is outside the area of the LEP Amendment which is the identified first part of the implementation of the PRCUTS for Inner West Council. * That the development will be inappropriately visually dominant in both relevant streetscapes. Namely, the proposed four storey street wall and the set back six storey upper level, will be visually dominant when viewed from the south east or north west on Parramatta Road. Further, the three storey- six storey scale at Redmond Street will be visually dominant when viewed from the Hay Street carpark and Catherine Street. Mr Chapman relies on the photomontages prepared by Mr Dickson, extracts of which are at [38]. * That a development of appropriate scale and built form that was compatible with the desired future character would have the following characteristics: "A suitable development form could be achieved on the subject site by 3-storey street wall that would align with the parapet height of the building at 289 – 295 Parramatta Road (Albert Palais building) at the corner of Parramatta Road and Catherine Street and 2 storeys recessed (setback 6 metres from the front boundary) and at the rear a built form that aligns with the existing building height RL33.54 – 35.2 corresponding to the proposed 2nd storey with 2 storeys recessed above. In my opinion, this built form that is consistent with the parapet height of existing buildings at the rear of the site and recessed 2 storeys would be an acceptable presentation of built form viewed from Catherine Street and Redman Street" (Exhibit 6) 1. In relation to Big Property v Randwick, Mr Chapman's evidence is: "I am not applying strict compliance with the 1.5:1 FSR development standard. The site can potentially accommodate a development that varies the FSR standard within a building envelope that has commercial floor area to Parramatta Road and to the rear lane, a 3 storey street wall to Parramatta Road and 2-3 storey built form to the rear with recessed upper level that presents a more appropriate built form to Parramatta Road and to the rear of the site and would improve the transition of development to the low-density area in Redmond Street." (Exhibit 6) 1. With reference to cl 6.11A(c) of LEP 2013, Mr Chapman argues that the relevant area for the consideration of compatibility with desired future character is the land fronting Parramatta Road between Catherine Street (to the east) and Renwick Street (to the west). Applying this area, Mr Chapman maintains his evidence that the proposed development is not compatible with the areas desired future character. 2. I note Mr Dickson agreed in his oral evidence with the area of land fronting Parramatta Road between Catherine Street (to the east) and Renwick Street (to the west) as being the relevant area for the assessment of desired future character. 3. Mr Dickson notes that the Urban Design Peer Review on which Mr Bonus' evidence relies has not been adopted by Inner West Council and that: "the architect's built form envelopes may never be adopted or incorporated into part of a planning proposal". (Exhibit 6) 1. Further, Mr Dickson notes that he disagrees with Mr Bonus' assessment that it is detrimental that a 3.0:1 FSR is not achieved in the built forms contained in the Urban Design Peer Review. He concludes that it would, in his opinion, not be possible for the subject site to achieve an FSR of 3.0:1 and be visually compatible with the character of either Parramatta Road or to provide a transition in scale to Redmond Street. He states: "Further, there is no certainty that the proposed 4 storey street wall to Parramatta Road with an additional two storey above will prevail in any future planning proposal. The visual analysis provided by the applicant in the various image above clearly indicates that the proposed development is visually dominant when viewed from the northwest and southeast on Parramatta Road. To this end it would appear from the visual analysis that three storey street wall that would essentially align with the existing adjoining buildings heights with two storeys above would be a more appropriate response. The marked up images in Attachment 5 Illustrate with red overlay the proposed changes to the built form. These images clearly illustrate o Street wall that relates to the existing street wall along Parramatta Road to Redman Street and o Built form that respond to the existing residential areas to the north and the northeast" (Exhibit 6) 1. Mr Dickson's evidence includes the following diagrams to visually articulate his analysis and support his conclusion that the proposed development will be visually dominant in the current and desired future character of the area: Parramatta Road: Redmond Street: (Exhibit 6) 1. I note that the red outline drawn over the preceding photomontages of the proposed development is Mr Dickson's visual articulation of an appropriate built form and scale for the subject site. The white shaded box on the adjoining sites is an expression of the built form proposed in the Urban Design Peer Review for those sites. 2. Finally, Mr Dickson argues that the development application lacks an urban design analysis and assessment that demonstrates the proposal's compatibility with the existing and desired future character. Submissions 1. Mr Staunton submits that the expert evidence supports a conclusion that the proposed development is compatible with the desired future character of the area due to its bulk, form, uses and scale. As such the Court could be satisfied that the precondition in cl 6.11A of LEP 2013 is satisfied. His reasoning is detailed in the following. 2. Firstly, that applying Terrace Tower Holdings v Sutherland Shire Council [2003] NSWCA 289, and the planning principle in Direct Factory Outlets Homebush v Strathfield Municipal Council [2006] NSWLEC 318 at [24], the PRCUTS is a document that may be taken into account by the Court. Firstly, in the determination of the application as part of the public interest pursuant to s 4.15(1)€ of the EPA Act and secondly, in making the determination of desired future character. 3. Secondly, the central issue in the case is the determination of desired future character and two decisions of the Court are relevant: Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115 ('Woollahra v SJD DB2') and Big Property Group Pty Ltd v Randwick City Council [2021] NSWLEC 1161 ('Big Property v Randwick'). Specifically, the conclusion at [62] of Woollahra v SJD DB2 that a consideration of desired future character permits the consent authority to take into account more than the development standards in the LEP and permits evaluation other factors such as the bulk, form and scale of existing development and approved development which contravene the development standards. This conclusion was reiterated in Big Property v Randwick at [42] which states 'the desired future character of the area cannot be determined by the applicable development standards for height and FSR alone'. In support of his submissions Mr Staunton refers the Court to the evidence of Mr Darroch and the three approvals granted in the Parramatta Road corridor, noting that each of the approvals exceed the 1.5:1 FSR standard with approved FSR's between 2.05-2.8:1. Mr Staunton submits these approvals, and their bulk, scale and form are relevant to the Court's determination of desired future character. Finally, Mr Staunton notes that the existing building form on the subject site would significantly exceed the FSR standard of 1.5:1. 4. Thirdly, specifically addressing the precondition at cl 6.11A of LEP 2013, Mr Staunton makes the following submissions in relation to the controls in DCP 2013: * The Site is not within a specific sub-area identified in the controls as having a distinct sense of place. * Many of the objectives of the relevant controls are directed to the desired future character, not the maintenance of existing character. * The controls encourage articulation of the rear lane frontage which is achieved by the proposed development. 1. Fourthly, that across the hierarchy of planning instruments, and policies, the area is identified for change and transition to higher density development as a means of rejuvenation. 2. Finally, Mr Staunton's submission is that in undertaking an assessment of the proposed development against the desired future character the Court should prefer the evidence of Mr Darroch and Mr Bonus over that of Mr Chapman and Mr Dickson on the following two grounds: * Firstly, Mr Dickson and Mr Chapman place too great an emphasis on compatibility with existing developments, in particular the Albert Palais building and the development on the corner of Philip Street and Parramatta Road; and * Secondly, they give too little weight to the existing approvals identified by Mr Darroch in the joint report. 1. In conclusion Mr Staunton submits the Court could be satisfied that the precondition in cl 6.11A of LEP 2013 is met. 2. Ms Hemming agrees with Mr Staunton that the primary difference between the parties, and their experts, is whether or not the building proposed is compatible with the desired future character of the area in relation to its bulk, form scale and uses. 3. Ms Hemming's principal submission is that the development application is in effect a planning proposal for the subject site and that the use of cl 4.6 of LEP 2013, in particular to vary the FSR development standard, to facilitate the development is inappropriate. Further, she argues that on the evidence of the experts the Court would conclude that firstly, the development proposed by it is incompatible with the desired future character of the area, will result in inadequate amenity for future residents of the apartments and that the development application lacks sufficient detail. 4. Ms Hemmings accepts that the PRCUTS is a regional strategy that is relevant to the background informing the development application and its context. However, she submits that the PRCUTS and its implementation is intended to be staged and the first stage (the LEP Amendment focused on Norton Street) does not include the subject site. She concludes that the Applicant, and its experts, place too significant a weight on the strategy in seeking for the Court to uphold the requested variations to the development standards. 5. Ms Hemmings emphasises that what the Applicant is seeking in the development application does not align with Council's existing planning controls and can't be said to be consistent with Council's future planning controls because they have not been drafted for the subject site. She concludes that the development is not consistent with the current controls in LEP 2013, is not consistent with the current controls in DCP 2013 and when the PRCUTS is examined in detail the development application is not consistent with its intended building form either. 6. Ms Hemmings submits that the uncertainty of the final development controls that may apply to the subject site through the implementation of PRCUTS is observable in the Urban Design Peer Review. She argues the Urban Design Peer Review establishes: 1. Whilst PRCUTS, as an overarching policy, seeks an increased density of up to 3:1 but, when applied to the subject site there is a need to step the building to Parramatta Road and provide a lower density at the rear of the site. The Urban Design Peer Review supports a conclusion that an FSR of 3:1 in unlikely to be achieved on the subject site. 2. That the amalgamation of the subject site and adjoining sites is desirable to allow for the 'straightening' of Redmond Avenue to the Hay Street carpark. 3. That the overall height of a building on the subject site needs to respond to the residential character at the rear and the proximate heritage items. The Urban Design Peer Review shows that there needs to be the stepping of the building to Parramatta Road and the lower density at the rear of the site. 4. Further, Ms Hemming notes that to the extent that the Urban Design Peer Review is relevant, the proposed development exceeds the density proposed in that document for the subject site in that it represents 20% of the site area of the amalgamated site, but proposes 50% of the nominated dwelling yield. 1. Finally, in relation to the evidence of the experts and Mr Staunton's submissions Ms Hemmings argues that: * Firstly, there are no planning controls which inform the desired future character on which the Applicant seeks to rely. * Secondly, there is no certainty what those planning controls will be as the Inner West Council seeks to implement future stages of PRCUTS and * Thirdly, to the extent that the Urban Design Peer Review is relied on, the application is inconsistent with the built form it proposes. * Fourthly, that the Council has a draft planning instrument (the LEP Amendment), of which the Site is not included. In terms of timing for any future stages, the LEP Amendment notes the subject site, and its surrounding area is not going to undertake change until after 2026. * Fifthly, that the Applicant places too much weight on existing planning approvals which are firstly, not within the area that is relevant for the consideration of the desired future character of the subject site and secondly that those approvals turn on the circumstances of their own facts and the particular context of those developments. 1. Ms Hemmings concludes that for the preceding reasons the Court would not be persuaded that the building proposed in the development application is compatible with the desired future character of the area due to its bulk, form, uses and scale. As such the precondition in cl 6.11A of LEP 2013 is not satisfied and the development application should be refused. Findings 1. In my view, to form a conclusion of satisfaction in relation to cl 6.11A(3)(c) of LEP 2013 it is necessary to answer three questions: 1. What is the relevant area for the purposes of cl 6.11A(3)(c) of LEP 2013? 2. What is the desired future character of that area? 3. Is the building proposed in the development application compatible with that character? 1. Considering the term 'area' in the context of the remaining text of cl 6.11A, in particular the objective of the clause, I prefer the evidence of Mr Chapman and Mr Dickson that the relevant area is no broader than the land fronting Parramatta Road between Catherine Street (to the east) and Renwick Street (to the west). Arguably, the area is in fact narrower and does not extend to the west beyond Balmain Road given the limits of the visual catchment of the subject site. In the subject case the language of the clause is directed to the land zoned B2, but also to 'neighbourhoods' and 'centres' both of which are terms that focus on centralised places rather than on ribbon or strip development which is the characteristic of the area advanced by Mr Darroch. 2. I am not persuaded that the area relevant to the Court's consideration of compatibility of a proposed building with other built elements extends to consideration of an existing approved development well out of the visual catchment of the subject site. On this basis I have not placed weight on those development applications relied on by Mr Darroch that fall outside the area defined by the land fronting Parramatta Road between Catherine Street (to the east) and Renwick Street (to the west). I have however given weight to the existing approval of the subject site. 3. Prior to determining the desired future character of that area, I make the following comments: * In my view it is relevant that in the making of the LEP Amendment the Inner West Council has not included the subject site as Stage 1 of any implementation of the PRCUTS. * I accept the submission of Ms Hemmings that the Applicant seeks to elevate the PRCUTS and the Urban Design Peer Review to the status of planning controls or that of a Council Policy of a type envisaged by Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [86]-[88] and [89]-[93]. In my view the Applicant seeks to give too much weight to these documents as defining the desired future character over the current planning controls. * There is no certainty, as demonstrated by the Urban Design Peer Review, how the overarching intent of the PRCUTS strategy will be translated into an environmental planning instrument. And it may never be so. Further, any such draft LEP will be subject to public consultation and political deliberation which is likely to shape the final form of any development standards or planning controls. I accept and adopt Mr Dickson's evidence in this regard. This uncertainty supports the view that the PRCUTS is not a document that should be given significant or determinative weight. * To the extent it is relevant in my view the Applicant incorrectly applies the reasoning in Big Property v Randwick, which on its facts is distinguished from the current application. Namely, the current application is not a development which relies on a provision which increases the development standards applicable as an incentive for the provision of affordable housing, thereby influencing the character of the area. * That the current proceedings are not of a type similar to Woollahra v SJD DB2 where two approved developments adjoining the subject site were said to demonstrate the desired future character but contravened the development standards that were in force. 1. The provisions of a development control plan need to be taken into consideration, in determining a development application, as a "fundamental element" in or a "focal point" of the decision-making process: Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [75], [77]. The Court, exercising the function of the consent authority to consider and determine the development application, is required to "take into consideration" any development control plan of relevance to the development and the subject of the development application: s 4.15(1)(a)(iii) of the EPA Act. In these proceeding, the relevant development control plan is DCP 2013. A provision of the development control plan that is "directly pertinent" to the development and the development application is entitled to "significant weight" in the decision-making process, although it is not determinative: Zhang v Canterbury City Council at [75]. 2. Although DCP 2013 is the focal point of the assessment, pursuant to s 4.15(3A) of the EPA Act there may be alternative solutions to achieve the objects of the provisions where the objectives of the provisions are met. 3. The statement of environmental effects provides a detailed analysis of the compliance of the development application against the provisions of DCP 2013, in particular those extracted at [29]. These planning provisions inform a determination of desired future character for the area, in particular (amongst all the relevant controls) those at Part C2.2.3.5 Leichhardt Commercial Distinctive Neighbourhood, namely: C1 Maintain the character of the area by keeping development complementary in architectural style, form and materials. … C13 Building wall height is to be a maximum of 3.6m, unless an alternate building wall height is prescribed under sub area controls. 1. Applying the planning controls (in particular LEP 2013 and DCP 2013) the desired future character of the area as currently framed is materially less than that proposed in the development application.For example a strict application of the wall height control at C13 of Part C2.2.3.5 of DCP 2013 would likely result in a part single, part two storey development, an outcome consistent with C1 which sees to maintain the areas character with an emphasis on new development of complementary architectural form to that existing. However, I accept that the specific circumstances of the development application warrant consideration of PRCUTS and the intent of government to use development as an incentive to rejuvenate the Parramatta Road corridor. 2. Having considered the evidence and submissions of the parties, I accept and prefer the evidence of Mr Dickson and Mr Chapman that the desired future character of the area is a scale better represented by a development with a street wall to Parramatta Road informed by the Albert Palais building (a heritage building that will remain) and a visual analysis of built form compatibility. I agree that those factors support the conclusion of Mr Chapman and Mr Dickson that the scale of desired future character is a three storey street wall, with the upper two floors recessed. 3. A similar assessment of the frontage to the rear, which recognises the narrowness of the lane and the heritage items in Catherine Street, supports the position taken by Mr Chapman and Mr Dickson that the appropriate scale at this location is a three storey street wall with a single recessed upper storey. So much is clear from the photomontages extracted at [45]. 4. In the alternative I find that Mr Bonus and Mr Darroch seek to persuade the Court that development of the subject and adjoining sites to a bulk and scale beyond that envisaged by the current planning controls is inevitable. Further, they argue that the proposed development represents the desired future character and will achieve compatibility with future development that will occur on the adjoining sites. However, this is not the approach envisaged by the planning system. I am not persuaded by their evidence, in particular given the exclusion of the subject site from the LEP Amendment which seeks to implement PRCUTS on which they rely. 5. Having established the desired future character of the area, clause 6.11A(3) requires the consent authority to consider whether the development proposed is compatible with that character. For the following reasons I find that it is not. I prefer and adopt the reasoning of Mr Chapman and Mr Dickson summarised at [38]-[47]. Further, 1. In my assessment the proposed building form relies on and anticipates future increases in height and FSR on the site, as a result of the implementation of PRCUTS. Further, it is responsive to the prospect that adjoining sites are developed. Both of these assumptions are uncertain. I am not persuaded that this is an appropriate foundation to establish compatibility. 2. The scale of the proposed building form to Parramatta Road is insufficiently responsive to the height, scale and form of the Albert Palais building which as a listed heritage item is likely to remain part of the character of the area. The additional storey of street wall proposed by the development application and its overall height is, in my view, jarring in the existing context and will remain so in any future context that may arise from a future implementation of the PRCUTS. So much is plain from an assessment of the Applicant's photomontages. 3. The through site link and the activation of the lane by the inclusion of retail are positive urban design elements that are compatible with the desired future character detailed in DCP 2013 (see C2 and C6 of C2.2.3.5). However, the overall form and scale of the proposed buildings presentation to the rear is not. For example, the cantilevered upper level facing Redmond Street is an uncharacteristic and jarring element when viewed from either Hay Street or Catherine Street. Further, the three-storey street wall is excessive, does not comply with the provisions of C13 of C2.2.3.5 or the objective of the provision, does not respond the existing R2 Low Density zone, or the potential three storey built form that may arise from a future implementation of the PRCUTS. 4. I am not persuaded that the proposals appearance is in harmony with the desired future character of the area. I am satisfied this conclusion is valid whether the desired future character is that described by the experts at [60] or that detailed in the applicable planning controls, an FSR of 1.5:1 (applying cl 4.4A of LEP 2013) and an application of the relevant controls in DCP 2013: Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [24]. 1. On the preceding basis I find that I cannot reach the state of satisfaction required by cl 6.11A(3)(c) of LEP 2013 that the building is compatible with the desired future character of the area in relation to its bulk, form, uses and scale. Accordingly, the Court's power to grant consent is not enlivened and the development application must be refused. The FSR variation 1. As noted at [19] the proposed development relies on a variation to the FSR standard utilising the flexibility afforded by cl 4.6 of LEP 2013. 2. Subclause 4.4A(3) of LEP 2013 prescribes three elements to be satisfied for the higher FSR to apply to the subject site. Namely: * That the building will have an active street frontage, * That the building comprises a mixed-use development, including residential accommodation, * That the building is compatible with the desired future character. 1. It is readily apparent that the same test is applied in cl 6.11A as in cl 4.4A of LEP 2013. Therefore, I rely on my findings at [20]-[22] that the first two of these requirements are met. However, it is plain on the same reasoning detailed in the preceding section I find that the third requirement, namely the requirement for compatibility with desired future character, is not met by the proposed development. 2. In my view, if the subject site is to benefit from an increase in height and or development potential the proper mechanism for that to occur is a planning proposal or an amendment to the development control plan both of which allow the appropriate consultation with Council and the community. Those amendments may be informed by PRCUTS. As held by Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438, at [441]: The Court must assume a development standard in a planning instrument has a purpose… Furthermore it is now established that although the discretion conferred by SEPP No 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan-making procedures set out in Pt III of the Environmental Planning and Assessment Act. 1. Clause 4.6 of LEP 2013 is a precondition that must be satisfied before consent can be granted. For the preceding reasons, I am not satisfied under cl 4.6(4) of LEP 2013 and consequently there is no power to grant consent to the development application, and the application must fail. Orders 1. The Court orders that: 1. The appeal is dismissed. 2. Development application DA2021/0727 seeking consent for demolition of the existing buildings and construction of shop top housing (ground floor retail and five levels of residential development), the creation of a pedestrian link between Parramatta Road and Redmond Street proposed at 305-313 Parramatta Road Leichhardt (Lot 2 DP 303623 and Lot B DP 158093) is determined by the refusal of consent. 3. The exhibits are returned with the exception of Exhibits 1, A, B. D M Dickson Commissioner of the Court ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2023