Land and Environment Court of New South Wales CITATION : East Quater Hurstville Pty Ltd v Hurstville City Council [2010] NSWLEC 1336 APPLICANT East Quater Hurstville Pty Limited PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 10706 of 2010 CORAM: Morris C KEY ISSUES: DEVELOPMENT MODIFICATION :- Whether the development is substantially the same development Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Hurstville Local Environmental Plan 1994 Civil Procedure Act 2005 CASES CITED: Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298, Vacik Pty Limited v Penrith City Council (LECNSW, 24 February 1992 unreported) TEXTS CITED: Residential Flat Design Code DATES OF HEARING: 25-26 November, 2010 DATE OF JUDGMENT: 3 December 2010 APPLICANT Mr A Galasso SC SOLICITOR Colin Biggers & Paisley LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg SOLICITOR Norton Rose Australia JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Morris C 3 December 2010 10706 of 2010 East Quarter Hurstville v Hurstvlle City Council JUDGMENT 1 Commissioner: This is an appeal pursuant to the provisions of s96(2) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Hurstville City Council (the council) of an application to modify a development consent which authorised the construction of a staged mixed use development at No. 103 Forest Road, Hurstville. The site 2 No. 103 Forest Road (the site) (formerly known as No. 95 Forest Road) is located on the southern side of the road at its intersection with Durham Street, to which it also has frontage. Kempt Field, a large public open space area, forms the site's eastern boundary and the Illawarra railway line the southern boundary. A disused building and vacant land are located to the west. That property has frontage to Hill Street. 3 Forest Road is a main road which runs through the Hurstville CBD. Commercial and retail development fronts that road between King Georges Road and the site. The CBD extends across the railway line into the Kogarah local government area and north to Park Road and The Avenue. 4 The site is located at the eastern end of the CBD and is identified in the council's Hurstville City Centre Concept Masterplan, adopted in 2004, (the masterplan) as a 'gateway site'. 5 The site has an area of 2.84ha and is being redeveloped from its former use as an industrial facility to a mixed use development, stage one of three stages having been completed and occupied approximately eighteen months ago. The issues 6 The contentions in the matter are firstly, a jurisdictional test of whether the modifications proposed will result in a development which is substantially the same as that approved under the original development consent and secondly, if the development is substantially the same, do the modifications sought warrant consent. Particular issues include: - The bulk, scale and height of the proposed buildings, - Impact of the development on the role of the urban square, - Impact of the roadways and parking upon the public domain within the development, - Changes to the elevations of Buildings A and B undermine the context of the public domain and diminish the architectural composition of the approved development, - Environmental impacts of the changes. The planning controls 7 The site is zoned 3(b) City Centre Business Zone pursuant to the provision of the Hurstville Local Environmental Plan 1994 (the LEP). 8 The objectives of the zone are: (a) to designate sufficient areas of land to meet the projected needs of the Hurstville Town Centre as a multi-functional regional centre, (b) to facilitate development of land within the Hurstville Town Centre for commercial, retail, residential and community purposes, (c) to provide a single business zone for the Hurstville Town Centre as a sub-regional centre, (d) to facilitate the implementation of a development control plan for the Hurstville Town Centre: (i) by introducing appropriate floor space ratio controls, (ii) by encouraging an economically viable retail core which is centrally located and in close proximity to public transport, (iii) by enhancing employment opportunities and to service the needs of the local and regional community, (iv) by encouraging and facilitating the use of public transport, (v) by providing and enhancing pedestrian and public open space areas for shoppers and workers, (vi) by maintaining and improving the environmental and aesthetic quality of the Hurstville Town Centre and its surrounds, (vii) by ensuring adequate and accessible off-street car parking, and (e) to improve traffic flow in and around the Hurstville Town Centre. 9 Business premises, residential flat buildings and shops are uses that are permitted with consent in the 3(b) zone. 10 Hurstville Development Control Plan No. 2 (the DCP) applies to the site. The DCP includes general controls in Section 4.1 and specific controls in Section 4.2. Those specific controls incorporate individual provisions which apply to each of 30 street blocks within the council area. The site is identified as being located within Block 27 and is, for the purpose of the DCP, known as site 27B. The controls for site 27B are limited to a height control of four stories and a floor space ratio (FSR) of 1:1 however, there is also a reference which states that these "can be negotiated depending on use". It is apparent that the consent was issued on the basis of such negotiation. There is no minimum street setback established. There are requirements for the location and size of balconies, the provision of vehicle access from Forest Road and car parking to be within a basement with a minimum of 70% of the parking required for retail and commercial uses provided on site and 100% of residential spaces on site. Background 11 The site was previously used for the manufacturing of aerosol cans and containers, a use that had been conducted for a number of decades. That use was conducted on the site at the time the council considered the original development application that is subject to this application to modify. The industrial use has now ceased and the former factory buildings have been demolished. As industries are a prohibited use in the 3(b) zone, the redevelopment of the site was determined utilising the existing use rights provisions that applied at the time however, it is noted that all uses approved under the development consent are now permitted with consent on the site. 12 Council approved DA 2003/1046 on 31 May, 2004 (the consent). The consent authorised the construction of a mixed use development on the site comprising seven buildings with three basement levels of carparking, urban open spaces, landscaped links through the site and three roads which, whilst remaining in private ownership, would be accessible by the public. 13 The development approved comprised 629 residential units, 4,670m2 of commercial floor space and 2,140m2 of retail floor area. The report prepared by council officers in relation to the application indicates the FSR of the development is 2.63:1 or 2.98:1 excluding the internal roads. A total of 1189 car spaces were provided with 1141 of those provided at basement level and 48 at grade. It is noted that the number of spaces provided exceeds the council's requirements by 130 spaces. 14 Building heights vary from seven storey (Building C), to sixteen storey (Building E). Buildings A and B are ten storey, Buildings D and F twelve and Building X which varies from five to eight storeys. 15 Site landscaping approved under the consent comprised an urban boulevard along the Forest Road and Durham Street frontage which, according to the officer's report, was to be vegetated and dedicated to the council. An urban square was to be provided between Buildings A and B fronting Forest Road and a Link Park provided between Buildings X and F. The latter park is also referred to as Wedge Park, due to its shape. 16 Vehicle access to the site was approved off Forest Road to a basement carpark which services Buildings B, C and D. Alternate access is provided to those buildings from the private road to be constructed as an extension of Hill Street along the southern boundary. That road, known as Railway Street, also provides access to Buildings E and F. Railway Street would meet another perimeter road, (Park Street) which runs along the site's eastern boundary with Kempt Field. Link Road, an internal road provides alternate access through the site and the basement parking for Buildings A and X. The at grade carparking is provided in those private roads. 17 Stage 1 works comprised Buildings C and D and these have been completed and occupied. Some of the retail tenancies are still available for lease. The proposed modification 18 The consent has been modified on a number of occasions. This application, which primarily relates to proposed Buildings A, B and E (the central buildings) involves the following: - Redesign of the urban square; - Provision of additional at grade car parking with shared pedestrian/vehicle ways through the urban square and urban boulevard; - Conversion of the two commercial levels in Buildings A and B to residential units; - Increase in building envelope and height of Buildings A, B and E; - Reconfiguration of Building A to include a double lift core; - Deletion of one level of basement parking, separation of carparking areas and relocation of access points; - Increase in number of units to 737 from 629; - Increase in retail floor space. 19 The following table compares the originally approved development to that now proposed. The consent Modifications sought Change Total residential units 629 737 +108 No. 1 bedroom units 246 280 +34 No. 2 bedroom units 327 392 +65 No. 3 bedroom units 56 65 +90 Lettable retail floor space 2140 sqm 2300.9sqm +160.9sqm Lettable commercial floor space 4,670sqm 221.9sqm -4448sqm Gymnasium space 2371sqm Nil -2371sqm Carparking (basement) 1141 spaces 1036 spaces -105 Carparking (at grade) 48 spaces 111 spaces +63 Total parking spaces 1189 spaces 1147 space -42 Total floor space 74,689sqm 76,838sqm +2149sqm FSR 2.625:1 2.7:1 +0.075:1 Building Height Building A 10 storey RL97.95 12 storey RL99.40 +1.45m Building B 10 storey RL97.00 12 Storey RL99.40 +2.4m Building E 17 storey RL120.20 17 storey RL121.95 +1.75m 20 The gymnasium was deleted in a previous modification approved by the council in 2006 and that space was redistributed as parking, retail and residential space. 21 The changes to buildings A and B involve the reduction in floor height of the former commercial levels, addition of two floors, changes to the internal design of the units, alterations to the facades and roof profile, minor increase to the floor to ceiling heights of some of the residential levels and relocation of roof plant. 22 In addition, a number of other changes are proposed including the provision of a single storey retail/substation building between Buildings D and E, the redistribution of floor space from Buildings E, F and X into Buildings A and B, changes to the basement carparks and access thereto and the provision of twelve flexible live/work dwellings in Blocks F and X. Section 96 23 The parties disagree on the primary test pursuant to s96(2)(a) of the Act as to whether the development as proposed is substantially the same as the development for which consent was originally granted and before that consent as originally granted was modified. Plans approved under the original consent were tendered during the proceedings as Exhibit A. 24 If the application fails this jurisdictional test, it must fail, even if I determine that the modified plans merit consent. Guidance on this assessment is found in Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298, where, at paras 55 and 56, Bignold J described the process for consideration of proposed modification of development as follows: 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development. 56.The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). 25 It is clear from Moto that there are two elements to be determined, they are a qualitative and a quantitative assessment of whether the modified development would be one that is substantially the same development as that originally approved. 26 The extent of changes is outlined in paragraphs 18 and 19 above. It is clear that there have been a significant number of changes to the development that was originally approved. I heard expert evidence from Mr Rowan and Ms Esposito (planning) and Mr Armstrong and Mr Dickson (urban design and architecture). The appendices to the joint expert report of Messrs Armstrong and Dickson provided extensive details of the changes proposed including comparative plans which outlined the approved and proposed scenarios, impacts of the changes on solar access and the location of all changes made. These details were particularly helpful in gaining a full understanding of the extent and impact of the modified proposal. 27 Mr Rowan considers that the impacts of the change to built form, public domain, traffic and parking and land use are such that the development as modified is not substantially the same as that approved by the consent. He quantifies the change in non-residential uses, which were 13% of the total floor area and he says, had a primary presentation to the street and urban square presenting a strong character to Forest Road and the public domain. He considers that the loss of the commercial space and the direct interface with the public domain has changed the attractiveness of the development as a destination. He also considers that the loss of commercial floor space will alter the function of the urban square, which is reliant on employees of that space to support the retail uses, particularly through the week. He is concerned that the quality of retail tenancy is compromised and that there will be less activity on the site as a result of the changes. He also considers that the introduction of vehicles and additional parking to the urban square and spine areas is a significant change that will look different and the attractiveness of those areas will be reduced. 28 Ms Esposito says that changes will not diminish the space and the urban square will maintain its active frontage and role as a pedestrian focal hub. She considers that the introduction of vehicles adds interest and invites visitors onto the site and the introduction of soft space maintains amenity and important pedestrian links through the site. 29 Both planners agreed that there are no controls in any of the council's planning documents that mandate the landuse mix on the site. 30 Mr Dixon considers the changes in the landuse mix will have a detrimental impact on the urban square, which, he sees under the current consent as being an active, vital and vibrant activity node operating day and night. He sees the commercial uses assisting in the provision of clientele to the retail space and without that input considers the character would change to a commuter development with low-level vitality. He does not support any change to the building heights as he considers the original dominance of Building E, which he considers to be the marker building within the development, would be lost. He is also concerned about the additional shadow impacts that Building A casts on Building F. 31 Mr Armstrong advises that the activity of the urban square will be maintained due to the retention of retail space at ground level. He considers that it will be difficult to perceive the changes to the built form, that Building E will continue to be an iconic marker building enclosed by Buildings A and B which define the urban square. His opinion of the building design is that each comprises a podium/base, middle and top element and that the language of that design is maintained. 32 He states that whilst there will be additional overshadowing, the development will satisfy the control in the Residential Flat Design Code which requires a minimum of 70% of units to receive passive solar access. He considers the width of the urban square to be a factor which can take the increased building height. 33 In undertaking a quantitative assessment of the changes, the table in paragraph 19 provides an overview of the impacts of the modifications proposed. The development approved under the consent is a large mixed use development and, despite the changes proposed, it will continue to be a mixed use development. It is important to note that this is not the test. In Vacik Pty Limited v Penrith City Council (LECNSW, 24 February 1992 unreported), Stein J, when dealing with the meaning of the words substantially the same development (considering the then s102 of the Act) said that: In approaching the s102 assessment exercise one should not fall into the trap of saying that the development was for a certain use, extractive industry, and as amended it will be precisely the same use and accordingly and substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. 34 There has been a significant increase in the proportion of residential floor space and subsequent reduction in commercial floor area. Whilst the proportion of one, two and three bedroom dwellings remains consistent, there are an additional 108 units or a 17% increase. Alone, that would not necessarily constitute a substantial change to the consent however, the commercial area is reduced from 4,670m2 to 222m2, which is a major and substantial change to the nature of the development. 35 I do not consider the changes to the building design, scale or bulk are such that the final built form would not be substantially the same as that approved under the consent. I agree with Mr Armstrong that the important design elements remain and that the increased height would not be discernible. 36 The introduction of the shared vehicle/pedestrian way alters the way in which the urban square can be utilised and whilst I accept that shareways can operate successfully, it is a facility that was not contemplated in the original consent. In addition, the reduction in the number of parking spaces, deletion of basement parking areas available to visitors and provision of all visitor parking at grade is a change which affects the way the site will be used. So too will the redesign of the basement area and the means of accessing those parking spaces. 37 I agree with Mr Dixon that the loss of such a significant amount of commercial floor space will alter the likely tenancy mix of the remaining retail and commercial space and the way the urban square operates. That change is a material change. 38 It is apparent that the changes made to the development are significant from a qualitative and quantitative sense. Many of those changes represent a material change to the original design philosophy, others are significant quantitative changes. The cumulative impact of those changes is so significant that I find that the modified development would not be substantially the same as that development approved under the original consent. Merit assessment 39 If I am wrong in the conclusion that I have reached on the jurisdictional test arising under s 96(2)(a), I should proceed to a merit assessment so that, if there were to be a successful appeal on my jurisdictional assessment, the parties could consider the outcome of that merit assessment to assist in ensuring that there could be a just, quick and cheap resolution of the matters as might arise on the remitter so as to facilitate achievement of the objectives of s 56 of the Civil Procedure Act 2005. 40 The remaining contentions relate to the bulk, scale and height of the proposed development. I consider that the increase in height of Buildings A, B and E ranging from 1.45m to 2.4m is appropriate for the site. Similarly, I find the changes to the building envelopes to be acceptable. 41 The urban square is identified in the masterplan as a major public square and accordingly, it is important that the development that surrounds the space enhances and enlivens its function. The masterplan also seeks to reinforce pedestrian links through the urban squares to railways, parks and other public spaces. 42 Whilst I note that the applicant, in the consolidated Statement of Facts and Contentions, states there is currently vacant commercial space in Hurstville, no evidence has been provided that the extent of commercial floor space approved under the consent cannot be sustained on the site over time. I acknowledge that the council has prepared a draft local environmental plan, (amendment 70) which seeks to reinforce Hurstville's commercial core by prohibiting residential development on land to which that plan applies. The plan does not alter the ability to develop commercial floorspace outside the core and accordingly, the provision of office or other commercial uses on the site are not considered to be contrary to the provisions of the draft plan. 43 I consider the introduction of soft landscaped areas to the urban square and wedge park to be a desirable element of the modified scheme however, I consider the introduction of the shareway would adversely impact the amenity, form and function of the urban square and not achieve the masterplan's objective of linking parks and squares. The green gateway contemplated by the masterplan is also compromised by the introduction of vehicles across the Durham Street frontage to the site. 44 I do not consider that the changes to the elevations of Buildings A and B undermine the context of the public domain nor diminish the architectural composition of the approved development. 45 Finally, I note that the shadow impacts from the increased height of Building A are such that the control of 3 hours solar access to units within Building F is met in 100% of the units and accordingly, the environmental impact of the height increase is considered to be reasonable. Conclusion 46 Having found that the proposed development the subject of the application is not substantially the same development to that approved by the consent, the application must be dismissed. Orders 47 The Orders of the Court are: 1. The appeal is dismissed. 2. The application to modify Development Consent DA 2003/1046 is refused. 3. The exhibits are returned. _______________________ Sue Morris 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.