Land and Environment Court New South Wales Medium Neutral Citation: Parkway Accommodation Pty Ltd v Newcastle City Council [2012] NSWLEC 1238 Hearing dates: 2, 3 July 2012 Decision date: 28 August 2012 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION - residential flat development - approval of development subject to deletion of one floor with six dwellings - subsequent application for approval of additional floor with six dwellings - height limit - privacy and visual impacts Legislation Cited: Environmental Planning and Assessment Act 1979 Newcastle Local Environmental Plan 1993 Newcastle Local Environmental Plan 2012 Cases Cited: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65 City West Housing v Council of the City of Sydney [2002] NSWLEC 30 Engadine Area Traffic Action Group v Sutherland Shire Council [2004] NSWLEC 264 Fairfield City Council v N&S Olivieri Pty Ltd [2003] NSWCA 41 Frevcourt v Wingecarribee Shire Council (2003) 128 LGERA 48 Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 CM Hairis Architects v Waverley Council [2003] NSWLEC 404 Progress & Securities v North Sydney Municipal Council (1988) 66 LGRA 236 Skyton Developments Pty Ltd v The Hills Shire Council [2009] NSWLEC 1299 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Tuite v Wingecarribee Council (No 2) [2008] NSWLEC 321 Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Parkway Accommodation Pty Ltd (Applicant) Newcastle City Council (Respondent) Representation: Counsel P Clay SC (Applicant) A Pearman (Respondent) Solicitors G McKee, McKees Legal Solutions (Applicant) J Marshall, Newcastle City Council (Respondent) File Number(s): 10310 of 2012 Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by the respondent Council of consent to Development Application DA 2011/1521 in relation to 121-123 Union Street Cooks Hill (the site). 2Development Application DA 11/1521, lodged on 15 December 2011, sought approval for "Addition to approved residential flat building". The approved residential flat building identified in DA 11/1521 had been the subject of Development Application DA 10/1511, lodged with the Council on 3 November 2010. That application sought approval for the demolition of the existing motel building on the site and construction of a four storey residential flat development with 107 units, a boarding house with 112 rooms, and associated car parking for 153 vehicles. 3Development Application DA 10/1511 was considered by the Council's Urban Design Consultative Group (the SEPP 65 Panel) and was assessed by Council officers. The capital investment value of the development application required that it be referred to the Hunter Central Coast Joint Regional Planning Panel (JRPP). On 27 October 2011 the JRPP determined that the application should be approved, subject to a deferred commencement condition in the following terms: The design and layout of the proposed "middle" residential flat building being modified to delete level 3 comprising dwellings Nos 401, 402, 403, 404, 405 and 406 so as to reduce the building's overall height and bulk. 4The applicant provided amended plans and on 17 November 2011 the Council granted consent (the approved development). 5Development Application DA 11/1521 seeks approval for the additional storey of the building located in the centre of the site, with six dwellings (4 x 3 bedroom and 2 x 2 bedroom units), deleted in the development consent granted to DA 10/1511 on 17 November 2011. The Council considered that the proposal was in substance a proposal for consent to carry out the development as proposed in DA 10/1511 and referred the development application to the JRPP. On 10 May 2012 the Department of Planning and Infrastructure advised the Council that based on the capital investment value of $1,095,000, the Council was the consent authority. The Site and its locality 6The site is Lots 1 and 2 DP 1050041, 121-123 Union Street Cooks Hill. The site has an area of 1.03 ha, and has dual frontage to Union Street and Corlette Street. The approved development incorporates two buildings with boarding house units on the Corlette Street frontage; two residential unit buildings on the Union Street frontage; and the central unit building; and has vehicle access to both street frontages. There is an existing motel with associated car parking located on the site; demolition of this development was approved in DA 10/1511. 7National Park, which comprises active recreation facilities including netball courts and sports fields, is located to the west of the site on the other side of Union Street. The site adjoins Newcastle Grammar School to the south. The properties to the north of the site are single storey detached dwellings, in the Cooks Hill heritage Conservation Area. The rear yards of the dwellings along Tooke Street adjoin the site. On the opposite side of Corlette Street are one and two storey attached dwellings, including social housing. 8The Junction Village shopping centre and commercial centre is located approximately 500 m to the south of the site. Market Town shopping centre is approximately 450 m to the north of the site. Issues 9In its Statement of Facts and Contentions the Council contended (1) that DA 11/1521 is an attempt to avoid the burden of development consent to DA 10/1511 after the applicant has accepted the benefit of that consent, and (2) the applicant is approbating and reprobating from the development consent to DA 10/1511; (3) the proposed reinstatement of the top storey would exceed the applicable height controls by 50 percent; (4) the proposal exceeds the height controls in the draft local environmental plan which is imminent and certain; and (5) the proposed reinstatement of the top storey should be refused in the public interest. 10The Council accepted that contentions 1 and 2 are in effect the same contention. The Council did not press contention 5 that the objectors' submissions are part of the public interest. Planning controls 11The site is zoned 2(b) Urban Core under the Newcastle Local Environmental Plan 1993 (the 1993 LEP) and the proposed development is permissible with consent. Clause 8 of the 1993 LEP requires that the consent authority have regard to the relevant aims and objectives of the plan, the relevant zone objectives, and any other relevant provision of the plan. The aims and general objectives of the 1993 LEP in cl 5 include Aim 1: "to respect, protect and complement the natural and cultural heritage, the identity and image, and the sense of place of the City of Newcastle". The zone objectives include (a) "to provide for a diversity of housing types that respect the amenity, heritage and character of surrounding development and the quality of the environment". Clause 33 applies to development in the immediate vicinity of a heritage conservation area, and requires the consent authority to assess the impact of the proposed development on the heritage significance of the heritage conservation area. 12The Newcastle Development Control Plan 2005 (the 2005 DCP) was in force at the date development application DA 10/1511 was determined and the date development application DA 11/1521 was lodged. The applicable height control was in Element 5.2 Urban Housing at 5.2.3(b), which specified a maximum height of 10m. 13The Newcastle Local Environmental Plan 2012 (the 2012 LEP) came into effect on 15 June 2012. Clause 1.8A applies, and requires that the development application be determined as if the 2012 LEP had not commenced. Under the 2012 LEP the site is zoned R3 Medium Density Residential and the proposed development is permissible with consent. The objectives of the R3 zone are: · To provide for the housing needs of the community within a medium density residential environment. · To provide a variety of housing types within a medium density residential environment. · To enable other land uses that provide facilities or services to meet the day to day needs of residents. · To allow some diversity of activities and densities if: (i) the scale and height of proposed buildings is compatible with the character of the locality, and (ii) there will be no significant adverse impact on the amenity of any existing nearby development. · To encourage increased population levels in locations that will support the commercial viability of centres provided that the associated new development: (i) has regard to the desired future character of residential streets, and (ii) does not significantly detract from the amenity of any existing nearby development. 14Part 4 of the 2012 LEP contains development standards, including cl 4.3, which provides that the height of a building is not to exceed the maximum shown on the Height of Buildings Map. The height limit for the site is 10 m. The objectives of cl 4.3 are "to ensure the scale of development makes a positive contribution towards the desired built form, consistent with the established centres hierarchy" and "to allow reasonable daylight access to all developments and the public domain". The development standard in cl 4.3 can be varied under cl 4.6. The applicant must make a written request that seeks to justify the contravention of the development standard by demonstrating that compliance is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)). The consent authority must be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the relevant zone (cl 4.6(4)). 15The Newcastle Development Control Plan 2012 (the 2012 DCP) was adopted on 15 November 2011 and came into effect on 15 June 2012. Part 7.01 Building Design Criteria states that the 2012 DCP applies to a development application lodged but not determined before the 2012 DCP came into effect. Evidence 16The hearing commenced on site with a view, which included a view of the site from National Park on the other side of Union Street; Corlette Street and Tooke Street in the immediate vicinity of the site; and the backyard of 115 Union Street. 17Evidence was given on site by local residents Mr Troy Anforth, Mr Zenon Helinski, Mr Matthew Helinski, Mr Phillip Smith, and Mr Shane Booby. The concerns raised included impact on recent purchasers of properties in the area; impact on the heritage conservation area; setbacks; non-compliance with the height controls which have not changed; calculation of the FSR; inadequacies in the images provided by the developer; traffic and parking issues given the introduction of timed parking in other parts of the city and the use of National Park for weekend sport; overshadowing and overlooking of properties in Tooke Street; and visual impact. Mr Robert Hutchings spoke on behalf of the residents of Sheddon Court, 115 Corlette Street, stating concerns about parking, and safety of residents walking or using wheelchairs in Corlette Street which is narrow and congested. Mr Alan Green, Headmaster of Newcastle Grammar School, raised concerns about traffic and parking; and overshadowing and overlooking of the pre-school adjoining the site. Notes taken of the evidence given on site are in evidence (exhibit 7). 18The evidence includes copies of the written submissions made to the Council in response to notification of the original development application DA 10/1511, the amended DA 10/1511, and the current development application DA 11/1521 (exhibit 1, volumes 4, 5 and 6). 19The Council relied on statements of evidence provided by Mr Christopher Speek, Senior Development Officer (Planning) (exhibits 2 and 3). Mr Speek was not required for cross examination. Mr Speek's evidence is that with the proposal involves the construction of an additional floor to the approved building. With that additional floor the proposed development will be approximately 15 m in height, which exceeds the height control in both the 2005 DCP and the 2012 LEP by 50 percent. In Mr Speek's opinion it is not good planning to approve development that exceeds applicable height controls by a margin of 50 percent, even where the control is contained in a DCP rather than an LEP. This is a de facto abandonment of, or major change to, the planning control and needs consideration in a strategic context. He does not agree with the recommendation to approve DA 10/1511 with the additional storey at a height of some 15 m. In Mr Speek's opinion the additional floor will add to the visual bulk of the building that would be visible from the public domain; nevertheless the impact will be reduced significantly given the central location of the development being set back a significant distance from the side boundaries and by the built form of the structure below. The distance from which the additional storey will be viewed would be such that the additional storey will be seen in the context of the approved development under the JRPP's consent to DA 10/1511. Mr Speek recommended that if consent is granted, further articulation should be introduced into the built form, and the terraces of units 401 and 406 should be reduced by at least 2 m in depth and this strip be utilised for a landscape are to assist in reducing amenity impacts from these balconies on the neighbouring properties. I note that the applicant has agreed to a condition requiring this modification to the development. 20In his second statement of evidence (exhibit 3) Mr Speek clarified his earlier statement by stating that his disagreement with the recommendation made to approve DA 10/1511 was a reference to the notion of a large variation to an approved development control, not to any specific proposal. Mr Speek stated that a merits based assessment is available to an applicant to demonstrate the suitability of a variation to a development control; he has not undertaken a merits based assessment and is therefore not able to comment on the merits of the subject development proposal or extent of the variation sought. 21The applicant relied on statements of evidence of Mr Craig Marler, Planner (exhibit D), and Mr Geoff Baker, Urban Designer (exhibit C). Mr Baker gave oral evidence and was cross examined. 22Mr Marler's evidence was that a merits assessment of the impacts caused by non compliance with the height controls is necessary and mere non compliance with the 2005 DCP does not necessarily mean that consent should be refused. The 2005 DCP itself acknowledges that a merits assessment is required and that controls can be varied. The Council has not undertaken a merits assessment of this application. The assessment of DA 10/1511 which proposed a building of the same height and extent as the development application the subject of this appeal by the SEPP 65 Panel determined the development to be satisfactory, noting that the height and scale of the building had been modulated both horizontally and vertically with maximum height located at the centre of the site, and the management of scale was acceptable. The Council staff also recommended approval of the previous application. The additional storey is setback from the respective street boundaries by approximately 43.68 m to Union Street and 43 m to Corlette Street, and is setback approximately 16.93 m to the south and 25.54 m to the north. The proposed FSR of the approved and proposed additional floor is 0.88:1 which is below the desired FSR for the site under the 2005 DCP at 0.9:1. The proposed height allows for floor space to be located in a position where the best planning outcome is achieved. It is also relevant that the site is subject to flooding and acts as a flood storage area, and that Council's design requirements (a maximum of 20 percent of the site could be filled) meant that much of the ground level could not be utilised for basement carparking. The minimum RL set by Council for the development was 3.2 m for habitable rooms which effectively elevated the building. 23In Mr Marler's opinion the proposed additional dwellings are appropriate and will result in a "compact and sustainable urban form" as described for the Substantial Growth Precinct in the 2005 DCP. The proposed additional level will make a positive contribution to the desired built form, and the development will have no significant impact on the local area. The additional level does not create any additional overshadowing over and above that approved in DA 10/1511. The large setbacks of the proposed additional level and the outlook to be achieved from each of the proposed units will ensure that highly desirable living conditions will be achieved. The proposed development does not result in any significant impacts on the amenity of surrounding properties in terms of overshadowing or unreasonable impact on privacy. 24In his Statement of Evidence Mr Baker referred to the five buildings approved for the site in DA 10/1511 as Buildings A and B on the Union Street frontage; Buildings D and E, being the boarding house units on the Corlette Street frontage; and Building C, the building located in the centre of the site on which the additional floor with six dwellings is proposed. Mr Baker stated that in his opinion it is important to look at the overall development to understand how the proposed extra floor will relate to the development as a whole and how its impacts will be mitigated by the other buildings and open space treatments which constitute the approved development. With the addition of six units the overall building is still well under the maximum permitted FSR for the site; an alternative strategy to accommodate those units would have been to maintain the approved height and enlarge the footprint of Building C by extending its ends closer to the side boundaries with its neighbours. An amount of floor space equal to that proposed for the top of Building C could be accommodated without exceeding the side boundary setback envelope; while being generally compliant, this configuration would have significantly greater impacts on the neighbours. 25Mr Baker addressed overlooking and overshadowing. In relation to overlooking, his evidence was that any potential for overlooking on the northern boundary is limited to unit 401, and for the southern boundary to unit 406; deep soil landscaping along both boundaries would ameliorate the impacts. There is no overshadowing of adjoining properties along the northern boundary or on Union Street and the extra floor does not contribute to overshadowing of Corlette Street; the proposed extra floor does not contribute any additional overshadowing of the school on the southern side between 9.00 am and 3.00 pm in winter. 26In Mr Baker's opinion the proposed extra floor will not be apparent from either side of Union Street opposite the proposed development because of the screening effect of Buildings A and B; a small portion of the extra floor will be visible from the opposite side of Union Street and opposite Tooke Street; and the extra floor will be visible between Building B and the school from locations on Union Street to the south west. The proposed building will not be apparent from Corlette Street opposite the proposed development because of the screening effect of Buildings D and E and the school buildings; there may be glimpses to the north east of the proposal on Corlette Street; and there may be some views of the extra floor to the south west, but those are limited in extent and will be ameliorated by proposed landscaping. Observers in the yard or open spaces adjoining the site's side boundaries may see a small topmost portion of the proposed extra floor, but in Mr Baker's opinion the effect would be negligible and approved landscaping along the side boundaries will diminish any such glimpses. In relation to more distant views, Mr Baker stated that the proposed extra floor will only begin to be visible from points more than 80 m into National Park, and the approved development and extra floor will be visible in more distant views from the park. With the exception of National Park, in distant views to the site the proposed extra floor will not be visible. 27In oral evidence Mr Baker addressed the extent of overlooking from the proposed additional floor to the rear yard of 115 Union Street. By reference to the plans in evidence Mr Baker was of the opinion that there would be no overlooking because of the distance and the height of the north facing units, particularly with the agreed reduction in depth of the terrace by 2 m and 800 mm high planting. Mr Baker considered the other rear yards, and stated that while a person at the edge of the terrace would see parts of buildings the distance of approximately 37 m and the angle would provide ample separation for privacy. Mr Baker was questioned about the photomontages provided and stated that in his opinion the quality is adequate. Mr Baker stated that a building with the same FSR within the 10 m height limit would go closer to the side boundaries and there would be more overlooking. In relation to the school, Mr Baker stated that while the building extended 5 m closer to that boundary, the setback for the units on that side meant that the sight lines would be the same. Overlooking of the school raises different issues to that of the residential neighbours, because the school is occupied between 9.00 am to 3.00 pm on five days. The school has a shadecloth structure and so most of the site would not be visible from the proposed development. Consideration Benefit and burden 28The Council submits that the issue in contentions 1 and 2 is that the applicant has had a significant benefit from the existing consent which it has not surrendered. The Council accepts that the making of a subsequent development application is not unlawful, but the common procedure would have been for the applicant to appeal the decision of the JRPP under s97 of the Act. The applicant has chosen not to do that because that would open up the whole of the consent. The Council accepts that the present application is not a re-litigation, but submits that it is a re-agitation of the matters that were before the JRPP. The Council accepts that doubt has been cast on the application of the equitable doctrine of benefit/burden in planning law (Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41), however Cripps AJA in that case stated that his remarks were not to be read as meaning that the court cannot have regard to the circumstances that a challenge to a development consent is not made until after the development is carried out. While the approved development has not been carried out, the consent has been activated by the submission of amended plans deleting the top storey and the consent has not been surrendered. The Council submits that irrespective of merit the fact that there is in effect a challenge to consent DA 10/1511 falls within the ambit of discretionary matters to which the court may have regard. 29The applicant submits that the benefit/burden principle does not fit comfortably as a planning law concept. The Act does not impose any limit on the ability to lodge a fresh development application as an alternative to applying for modification under s 96. At its highest the benefit/burden principle operates as a matter of discretion, and is not of determinative weight. It is relevant to consideration of discretion that the present development application was lodged quickly after the initial determination, rather than waiting some years later. The applicant is in effect seeking to "perfect" the consent. The applicant has not received a "benefit" in the sense of having acted on a consent. 30In addressing contentions 1 and 2 as framed by the Council, the parties agree that any principle of benefit/burden would not be sufficient to disqualify a proponent from seeking development consent even where that which is the subject of the development application is the subject of a condition imposed on an earlier consent, and that at best, the concept may form an element in the exercise of discretion to grant consent. I accept that position, which is consistent with the decision of Bignold J in Progress & Securities v North Sydney Municipal Council (1988) 66 LGRA 236 (an application to modify a development consent) where his Honour referred to conduct of an applicant in accepting the benefit of a development consent but seeking to be relieved of the burden created by the imposition of the condition sought to be deleted as "a related discretionary consideration", and subsequent judicial consideration in Fairfield City Council v N&S Olivieri Pty Ltd [2003] NSWCA 41 (Court of Appeal) and in City West Housing v Council of the City of Sydney [2002] NSWLEC 30 (Talbot J), Frevcourt v Wingecarribee Shire Council (2003) 128 LGERA 48 (Pain J), CM Hairis Architects v Waverley Council [2003] NSWLEC 404 (Pain J), and Engadine Area Traffic Action Group v Sutherland Shire Council [2004] NSWLEC 264 (Lloyd J). While in the circumstances of this case, the applicant could have appealed under s 97 from the determination of the JRPP, there is no express statutory limitation on being able to use one process after having used another process: Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65. 31The Council submits that it is relevant in the exercise of discretion that the applicant had submitted plans to the Council removing level 3 in satisfaction of the deferred commencement condition imposed by the JRPP and the consent to DA 10/1511 is now operative; and the applicant submitted a fresh development application to reinstate that top storey, and sought to have the Council determine it when the applicant was aware that Council officers did not support the condition of consent imposed by the JRPP which deleted the top storey. The applicant cannot demonstrate that circumstances have changed since the JRPP's grant of consent in October 2011. The consent has been activated by the submission to Council of amended plans deleting the top storey and the consent has not been surrendered. 32I accept the applicant's submissions that to the extent that the benefit/burden principle may be relevant to the exercise of discretion to grant or refuse development consent, it should not be exercised against the proper consideration of the application. In the authorities previously cited, including Progress & Securities, there had been actual construction of the building the subject of the development application and a subsequent application to modify a condition of the consent authorising that construction. While I do not accept the submission that there is no "benefit" yet derived from the consent granted by the JRPP, since the existence of an operative development consent for the site has some value, the present application made shortly after the consent became operative, and before construction has commenced, is distinguishable from the authorities cited by the parties. There is no legal barrier to the lodging of the present development application, and no previous determination by the court as to the merits of the development application in its original form. The fact that Council officers supported that development application in that form creates some difficulty for the Council in resisting the present application, however that is not unusual in Class 1 appeals, and would not appear to be sufficient to preclude the applicant making a fresh development application, which must be assessed on its merits. Approach to assessment of the development application 33The parties disagreed on the correct way to approach the assessment of the development application. The Council submits that based on the plans which confirm that the development application is only for the six units on level 3, the proposed development should be considered in isolation, as a separate floor containing six units, which does not comply with the height control. It is not correct to consider the present application in the context of the earlier consent. The applicant submits that the proposal should be considered in the context of the outcome of the earlier development application, that is as one additional storey higher than the current approval. 34Both relied on the decision of Preston CJ in Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780. In that case the development application the subject of the appeal to the Court described the proposed development as being the amendment of an existing development consent. The applicant had contended that the relevant inquiry was limited to only the alterations and additions from the development the subject of the previous consent and the matters under s 79C were only relevant insofar as they applied to those alterations and additions. 35The Chief Judge held that the development application was inaccurate, and that under the Act a development application can only be made seeking consent for the carrying out of development of one or more of the types identified in the definition of "development" in s4. Preston CJ held: 19 The misdescription in the development application of the development as being the amendment of the existing development consent does not necessarily mean that the development application is incompetent. The fact that somebody describes development in a particular way does not necessarily lead to invalidity; one looks to substance not form. The important point is to understand what is the particular development that is being proposed and that can be understood by looking at the particular plans accompanying the development application. 36Preston CJ held that the application then before the Court clearly did propose the carrying out of development notwithstanding the description, noting that when looking at the plans accompanying the development application compared with the approved development there were significant differences at every level and on every elevation and there was a significant difference in the uses proposed, from hotel to residential. Preston CJ held: 22 If one took, just to give one example, the issue of height. The proposed development still will reach the maximum height limit at a particular point. The feature of the building that causes it to breach the height limit is different and located at a different location to that feature which breached the height limit under the existing development consent. There is also a reduction in height in certain parts of the building in the proposed development to that which was approved under the existing development consent. 23 However, those features which breach the height limit have to be looked at in their context. When one looks at the proposed plans and compares them to the development that was approved by the existing development consent, one sees that at every level there is a difference. It is not simply a matter of the deletion of one storey, it is an overhauling of the whole of the development from below ground to the top of the building. 24 The height also has to be considered in the context of the other aspects of the building including its bulk and scale and design features. It is not absolute height that is always what is important. It is its perceived height and how it interrelates with other buildings and the impacts it has on the streetscape and surrounding development. 25 In this context, it would be artificial in the extreme to look only at that part of the building that previously breached the height limit and compare it to the new part of the building which breaches the height limit divorced from the broader contextual inquiry and the rest of the building. 37Preston CJ concluded that there was no warrant to strike out the Council's contentions which raised issues relating to the assessment of the resultant development in terms of s 79C of the Act. 38On my reading of the decision, the focus on the plans in Gordon & Valich relates to the need to identify "development" as defined in the Act, in the context of the misdescription in the development application. In this matter, the plans show the proposed construction of an additional floor as the "development" proposed, located in the context of the structures already approved in DA 10/1511. Having regard to the description of the development for which consent was sought in DA 11/1521, and the plans, in my view it is not appropriate to consider the proposed development for an additional storey containing six units on level 3 of the middle building in isolation from the approved development. The boarding house component of the approved development adjoining Corlette Street exceeds the 10m height limit by 0.5 m; the residential flat building adjoining Union Street exceeds it by up to 1.5 m; and the central building exceeds it by up to 4.8 m with the upper level sitting entirely above the height limit (vol 2, p 166). A significant part of the Council's case is the extent of the exceedence of the height limit, and in my view it is artificial to consider a departure by 50 percent represented by the additional floor divorced from the context where the other parts of the development also exceed the height limit, by up to 22 percent. The impacts of the exceedence of the height control of the proposed additional floor, including in relation to bulk and scale, cannot in my view be considered other than in the context of the development as a whole. To consider the development proposed in the present development application on this basis is not to undertake a comparison between the development presently proposed and that approved, but is in my view the appropriate way to assess and determine the particular application before the Court: Tuite v Wingecarribee Council (No 2) [2008] NSWLEC 321. DCP Height Control Non-Compliance 39The Council submits that the development consent to DA 10/1511 already represents a 22 percent departure from the height limit of 10 m in the 2005 DCP and the applicant is now seeking a 50 percent departure. The height limit was imposed through a strategic process which involved wide community consultation which commenced with the Newcastle Urban Strategy (NUS) and culminated in various planning instruments including the 2003 LEP and 2005 DCP. While the site is in the Substantial Growth Precinct, the 2005 DCP constrains this by reference to FSR and height. The Court should give the conclusion of the JRPP significant weight because it is a senior panel, and the SEPP 65 Panel and Council assessment reports went up to it. Those reports did not convince the JRPP. The JRPP permitted an exceedence of the height control of 22 percent; however to exceed the height control by 50 percent is not appropriate, and amounts to a change in the planning controls. The applicant's justification for the excessive height sought, that the site has particular flood constraints which prevent excavation and that an alternative design maximising the allowable FSR would negatively impinge on residents, assumes that the FSR control is a control as of right. The Council submits that it is not unreasonable to require the applicant in the circumstances of a constrained site to be limited to the 22 percent exceedance already granted. The Council submits that to allow the development of the height proposed in this application would be to effect a general change in the planning regime for the site beyond that contemplated by the appropriate planning controls, relying on Skyton Developments Pty Ltd v The Hills Shire Council [2009] NSWLEC 1299. 40The applicant submits that the terms of the 2005 DCP itself anticipate that compliance with a control does not necessarily mean that a development is appropriate, or that non-compliance means that a development is inappropriate. The applicant submits that having regard to the objectives of the NUS, the provisions and objectives of the 2005 DCP, the constraints and opportunities of the site, the capacity to increase setbacks to adjoining private owners, the absence of physical impacts, and the orderly and economic use of the land, the development should be approved notwithstanding the numerical non-compliance. The Council assessment considered all the relevant s 79C matters and dealt with the objections; it is a detailed analysis, and should be given greater weight than the analysis by the JRPP. The legislation does not require that weight be given to the assessment by the JRPP. The evidence of Mr Baker and Mr Marler, which responds to Mr Speek, should be given weight. 41Section 79C (1)(a)(iii) of the Act requires consideration of the provisions of the 2005 DCP. The proper approach to that task is that while not being determinative, the DCP must be considered as a "fundamental element" or a "focal point" of the decision-making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. In Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 at [27], the Court of Appeal confirmed that while it might be open to take the view that, for reasons related to a particular site, it is not appropriate to compel compliance with requirements of a DCP, I am not entitled to take the view that the standards set by the DCP are inappropriate for reasons of general policy. That was the approach adopted by Brown C in Skyton at [46]. I agree with the Council that, as outlined below, the development of the 2005 DCP and the 2003 LEP were the outcome of a strategic process which involved wide community consultation which commenced with the NUS. 42Element 5.2 of the 2005 DCP addresses Urban Housing. At 5.2.1(a) the 2005 DCP states that it "strengthens the neighbourhood visions and objectives of the Newcastle Urban Strategy", and that the NUS "should be read in conjunction with this Element". 43It was common ground that the NUS is entitled to significant weight in accordance with the principles identified in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [92]. The NUS is identified on the Council's website as a policy which the Council uses when making decisions (exhibit F), and is described in the following terms: The Newcastle Urban Strategy (NUS) provides direction for the development and management of Newcastle over a 25 year period. It is also flexible to accommodate future economic trends and the social and environmental needs and aspirations of the community. The Strategy's key objective is to promote existing neighbourhoods as mixed use centres 'urban villages' with higher employment and housing densities that in the past, and with buildings and streetscape works that celebrate local identity and respect local character. 44The NUS was developed in 1998, and the 2009 Update is in evidence (exhibit 1, p 426). At 1.1 the NUS is described in the following terms: The Newcastle Urban Strategy is one of a number of related city strategy documents which describe Council's "big picture" policy. These include the Strategic Directions Statement, the Social Strategy Plan, the Cultural Review, the Newcastle Environment Management Plan, the Linking Plan, the Landscape Structure Plan and the Efficiency and Effectiveness Policy. The Strategy provides the basis for more detailed and/or localised policy and action plans. Specifically it provides the basis for the Newcastle Local Environmental Plan 2003 and the Newcastle Development Control Plan 2005. The Newcastle Urban Strategy has been prepared as a local environmental study, according to the requirements of the Environmental Planning & Assessment Act. 45At 2.3 the NUS provides Neighbourhood Visions and Objectives, including for Cooks Hill and The Junction. At 2.4 the NUS provides City-wide Strategies, including 2. Residential Development Strategy, which prescribes where housing may be developed at low, medium and higher densities. There are three precinct areas, Substantial Growth Precinct, Moderate Growth Precinct, and Limited Growth Precinct. Criteria are provided to determine whether a site falls within one of those three precinct areas, by measuring the distance along a street system that can be walked by reference to safety, accessibility, friendly pedestrian routes, and efficiency ("SAFE" criteria). The Substantial Growth Precinct applies to residential land within a 10 minute SAFE walk, approximately 800 m, of an established district level centre and/or railway station except land within a designated Heritage Conservation Area. The site is in a Substantial Growth Precinct. 46The 2005 DCP provides at 5.2 Urban Housing the following objectives for the Substantial Growth Precinct: To: Promote a substantial increase in new dwellings, greater housing diversity and new built form. Encourage redevelopment or consolidation that allows for more compact and sustainable urban form. Create a vibrant place for people to live in proximity to community facilities and services, commercial centres, employment, and transport nodes. Encourage public transport, walking and cycling as alternatives to the car. 47The 2005 DCP notes (at 5.2.1(a)) that context includes social, economic and environmental factors as well as the physical form of the area and its surrounds. Part 5.2.3 Building Height and Appearance places emphasis on "the appearance, height and scale of buildings". Part 5.2.3(b) Building Height states as general objectives: To: Ensure development enhances and makes a positive contribution towards the desired built form. Allow reasonable daylight access to all developments and the public domain. Encourage design which creates desirable living conditions and ensures that the amenity of surrounding properties is properly considered, particularly in relation to issues of privacy and overshadowing. 48The specific objectives for the Substantial Growth Precinct are "to ensure that height relates to the desired future built form". The maximum height specified for the Substantial Growth Precinct is 10m, measured vertically from existing ground level to the highest point of the building. The Performance Criteria provide: The maximum height may be varied where a written request has been received from the applicant that seeks to justify the variation by demonstrating: Compliance with the height and/or FSR controls is unreasonable or unnecessary in the particular circumstances; or The height of the proposed building is equivalent to or less than the height of a building on an adjacent site; or The variation is minor and would satisfy the objectives and performance criteria of this section; and Other requirements of this Element relating to streetscape, daylight, sunlight and privacy are satisfied. 49The 2005 DCP makes it clear that the maximum height limit can be varied in appropriate circumstances. I agree with the applicant that it is not determinative that the variation proposed is 50 percent above the height limit. The extent of the variation, and whether it could be described as "minor", is one of the justifications identified in the 2005 DCP. The approach relied upon by the applicant, namely that compliance is unreasonable or unnecessary in the particular circumstances, is clearly open under the 2005 DCP. 50The applicant submitted as its justification for seeking a variation to the height limit that the setbacks are in excess of the minimum required; the additional height does not create more overshadowing; more open space and landscaping opportunities are created; flood planning allows a basement car park for 20 percent of the site with all other parking to meet the 2005 DCP at grade; the additional height at the central building has been designed as a recessive element which is effectively self shadowing; the additional height is not an overdevelopment; and the alternative of spreading the buildings over the site to reduce height would create more bulk, scale and privacy issues. The reports provided by the applicant with the development application, including those prepared by Mr Baker, and the statements of evidence provided in these proceedings, submit that the height of the development is satisfactory because any potential for overlooking has been carefully managed; the proposal causes less overshadowing of neighbours than would a development adopting the height and setback controls; the portions of the development exceeding 10m which are visible from the public domain in close proximity are generally limited to Union Street; those visible in more distant views will only be seen from National Park; and the parts of the development which exceed 10 m do not block any existing views. 51I agree with the applicant that the development as a whole, and the addition of the proposed six units, is consistent with the objectives of the Substantial Growth Precinct: it provides a substantial increase in new dwellings, and encourages redevelopment, on a site close to community services and facilities including shopping centres and transport. The development as a whole, including the additional units, complies with the applicable FSR control. 52The general objectives of the building height controls are provided at 5.2.3(b) of the 2005 DCP. The Council's Urban Design Consultative Group assessed the proposed development in its original form, which included the additional floor, on 16 February 2011 (exhibit 1, vol 2, p20), and noted that "the height and scale of the buildings have been modulated both horizontally and vertically with maximum height located at the centre of the site". The Urban Design Consultative Group considered the management of scale to be acceptable in the location. The Council's Assessment Report provided to the JRPP dated 27 October 2011 considered Element 5.2 of the 2005 DCP in detail, noting that the proposed development was consistent with the principles of the NUS by locating higher density residential development within close proximity to The Junction commercial centre and also Newcastle City Centre, and the site has good access to public open space (exhibit 1, vol 2, p 163). The Assessment Report noted that the development establishes a scale and form appropriate for its respective residential precinct, achieves an active street frontage, provides for appropriate building depth and bulk and for high quality landscaping (p 164); and that while the development is more intensive than current development on the site it was considered acceptable in terms of the desired built form for the area (p 165). 53The Assessment Report noted that the flooding constraints on the site do not justify a departure from the height guidelines in their own right, however that means that the applicant is constrained in exploring alternative design solutions such as underground basement car parking (p 166). The Assessment Report agreed with the applicant that the proposed development provided a better overall planning outcome than what could reasonably be expected from an alternate design of compliant building height but increased footprint; the location of the higher portions of the development centrally on the site minimises visual impact and the increased setbacks from boundaries provide for improved privacy (p 168). The Assessment Report accepted that the applicant had adequately justified that compliance with the height control was unnecessary and unreasonable in the circumstances (p 169). 54The Minutes of the JRPP meeting of 27 October 2011 are in evidence (exhibit 1, vol 2 p 215). The Minutes identify the persons speaking in favour of and against the approval of the proposed development, and state as the reason for the imposition of a deferred commencement condition requiring deletion of the level 3 units: To ensure that the external appearance and overall height of the proposed development is reasonably in character with the character of existing and future development in the locality and does not detract from the existing streetscape. 55The Council relies on the decision of Preston CJ in Walton v Blacktown City Council [2006] NSWLEC 451 to support its submission that the conditional grant of approval and reasons are a relevant matter in the exercise of discretion in considering the identical matters which the JRPP took into account in refusing the additional six units. However, this is not a situation where an applicant is seeking, in a s96 modification application, to re-litigate matters argued and determined in a prior appeal under s97 of the Act and where there needs to be some material change in circumstance or something revealed that was not known at the time of the earlier hearing, and Walton is distinguishable. The Council submits that the determination of the JRPP should be given significant weight. I agree that the determination and the reasons of the JRPP are relevant, however the present development application must be assessed on all the evidence now before the Court, which includes the determination and reasons of the JRPP. 56The evidence now before the Court includes the statements of evidence of Mr Marler and Mr Baker, and the oral evidence of Mr Baker. The plans for the proposed additional floor have been amended to reduce the depth of the terraces on the northern side of the building and to require landscaping on the terrace. Mr Baker's oral evidence included notation on the plans of estimated sight lines from the proposed additional floor to the adjoining residential properties in Tooke Street and at 115 Union Street. I accept Mr Baker's evidence concerning privacy impacts, and his evidence (noted above at [26 ]) concerning visual impact of the proposed additional floor. 57Having regard to the evidence now before the Court, I am satisfied that when considering the proposed additional floor in the context of the development as a whole and the site, compliance with the 10 m height limit is not necessary. If I am wrong in the approach adopted to assessment of the development application, and the proposed floor should be considered in isolation from the approved development, I would reach the same conclusion. The proposed additional floor is located in the centre of a large site, and there are substantial setbacks from all four boundaries of the site as noted in the evidence of Mr Marler at [22], which both reduce visibility from both proximate and more distant positions, and minimise privacy impacts on adjoining neighbours. This is not a situation where, as in Skyton, there was a substantial departure from both height and density controls, and where it could be said that approval of the application would be to effect a general change in the planning regime for the site beyond that contemplated by the planning controls. 58The evidence of Mr Marler and Mr Baker, which I accept, is consistent with the conclusions reached on issues of height, bulk and scale, privacy and visual impact, and consistency with the objectives identified in the NUS and the planing controls, by the Council's Assessment Report and its Urban Design Consultative Group, and on that basis while the proposed development exceeds the height limit in the 2005 DCP it is appropriate to approve the development application. The 2012 LEP height control 59It was common ground that the 2012 LEP must be regarded as certain and imminent for the purposes of consideration of its provisions as required by s 79C(1)(a)(ii) of the Act. The height control in cl 4.3 of the 2012 LEP is the same as that applicable to the proposed development in the 2005 DCP, and the objectives of cl 4.3 are similar to those in the 2005 DCP. The height limit development standard can be varied in accordance with cl 4.6 of the 2012 LEP. 60The Council submits that the 10 m height control in the 2005 DCP has been made more concrete in the 2012 LEP which provides it as a development standard, and that the conversion of the control to a standard should be given considerable weight, particularly given the Medium Density zoning of the site. The applicant submits that the fact of the height control in the 2012 LEP cannot be a matter of determining weight because that would mean the savings provision has no work to do. 61For the same reasons as above in relation to the 2005 DCP, I am satisfied that a variation of the height limit would be justified under cl 4.6 in the circumstances of the case. Clause 4.6(4) requires consideration of the objectives for development in the relevant zone. I do not accept the Council's submission that the extent of the exceedence means that it is inconsistent with the desired built form identified in the 2012 LEP. The change from a height limit in a DCP to a variable development standard in the 2012 LEP would not of itself justify refusing a variation otherwise justified by reference to the relevant criteria and the merits. Considering the objectives of the R3 Medium Density zone, and the objectives of the 2012 LEP, on the evidence before me I would not disagree with the conclusions of the Council's Assessment Report relating to DA 10/1511 that the development then proposed, which included the additional floor, was consistent with the objectives of the then draft local environmental plan. The Assessment Report included the comment that the proposed development would provide appropriate density and choice of housing stock which is consistent with the objectives of the zone; and the development is providing for an appropriate increase in residential density that would support the local shopping centres of The Junction and the West CBD (exhibit 1, vol 2, p 158); and that it is consistent with the likely future character of the site and that intended when the NUS and control document were developed (at p 159). Matters raised by objectors 62The Council notified the original development application DA 10/1511 in November 2010 and the amended DA 10/1511 in August/September 2011, receiving 300 and 110 written submissions (exhibit 1, vols 4, 5). Development application DA 11/1521 was notified in March/April 2012 and 55 submissions were received (exhibit 1, vol 6). 63In summary, the issues raised in the written submissions, and in the oral evidence given on site, relate to departure from the planning controls, loss of privacy for residents in Tooke Street and the school, overshadowing, loss of value to neighbouring properties, noise impacts, traffic and parking impacts, amenity and safety impacts on the school, bulk and scale, and incompatibility with the Cooks Hill Heritage Conservation Area. 64The Council submits that the submissions made by the objectors must be considered under s 79C(1)(d); those submissions were considered by the Council officers in their assessment; and where the objections are addressed by the applicant's evidence on town planning and urban design issues it would be open for the Court to prefer the concerns raised by the objectors. 65Many of the concerns raised by the objectors relate to the development as a whole, including the development approved in DA 10/1511, and which were addressed in the Council officers' Assessment Report. That report concluded that the development, including the additional floor, met the required number of residential and visitor car parking spaces under the 2005 DCP, and the bicycle and motorcycle parking spaces required under the SEPP (Affordable Rental Housing) 2009, and that it is not relying on on-street parking to meet parking requirements (exhibit 1, vol 2, p 160). The Assessment Report addressed impacts on traffic during school AM and PM peak periods, and weekends; and noted amendments to vehicle access to the site. The Assessment Report assessed the height issue by reference to plans including elevations and sections through the site checked by a registered surveyor (exhibit 1, vol 2, p 172). The Assessment Report agreed with the applicant's calculations of Gross Floor Area and FSR (exhibit 1, vol 2, p173-4). The issue of overshadowing was addressed in Assessment Report (exhibit 1, vol 2, p179-180), noting that areas of non compliance have minimal impact on overshadowing. 66For the reasons given above, I accept the expert evidence provided on behalf of the applicant in relation to planning and urban design issues. The other matters raised by the objectors would not be a basis for refusal of the development application. Orders 67The orders of the Court are: 1. The appeal is upheld. 2. Development Application DA 2011/1521 for addition to an approved residential flat building at 121-123 Union Street Cooks Hill is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits 4, A and B. Linda Pearson 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: 28 August 2012