Land and Environment Court New South Wales Medium Neutral Citation: Tepazo Pty Limited v Lane Cove Council [2014] NSWLEC 1078 Hearing dates: 30 April, 1-2 May 2014 Decision date: 09 May 2014 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: Residential Flat Building: Height, bulk and scale, impacts on adjoining properties, compliance with planning controls. Legislation Cited: Lane Cove Local Environmental Plan 2009; State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development; State Environmental Planning Policy (Building Sustainability Index BASIX) 2004; State Environmental Planning Policy (Infrastructure) 2007; Land and Environment Court Act 1979; State Environmental Planning Policy No. 1 - Development Standards; Environmental Planning and Assessment Act 1979 Cases Cited: Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Wehbe v Pittwater Council [2007] NSWLEC 827; Texts Cited: Lane Cove Development Control Plan 2009; Residential Flat Design Code; Building Code of Australia Category: Principal judgment Parties: Tepazo Pty Limited (Applicant) Lane Cove Council (Respondent) Representation: Ms S Duggan SC (Applicant) Gadens Lawyers (Applicant) Mr A Seton Marsdens Law Group (Respondent) File Number(s): 10062 of 2014 Judgment 1Tepazo Pty Limited lodged development application D205/13 with Lane Cove Council on 20 December 2013 seeking consent for the demolition of existing buildings and construction of a residential flat building at 390-398 Pacific Highway, Lane Cove. The application was refused consent and Tepazo is appealing that decision. The site and its context 2The site comprises three adjoining allotments, Lots 13, 14 and 15 in Deposited Plan 1056023, each having dual frontage to both the Pacific Highway and Mafeking Avenue. The site has a total frontage of 42.27m to the highway and 42.25m to Mafeking Avenue, depth of 60.96m and an area of 2,575.6sqm. 3The site falls from the highway to Mafeking Avenue (east-west) by approximately 7m. The land forms part of a stratum subdivision for the Lane Cove Tunnel, which has the effect of limiting the extent of excavation that can be carried out. Those stratum lots owned by Roads and Maritime Services, Lots 24-26, lie directly under Lots 13-15, commence at RL88.91 and are unlimited in depth lying below a horizontal plane at that level. The land above that level is land to which the application applies. 4The site currently contains one and two storey office and shop buildings oriented to the Pacific Highway with vehicle access available from the rear off Mafeking Avenue. 5The highway forms the boundary between Lane Cove and Willoughby Council areas. Development on the opposite side of the highway and to the north west of the site fronting Longueville Road and the highway comprises residential flat buildings and commercial development. 6The council has recently approved the construction of a residential flat building on land to the immediate north of the site, know as No 9 Mafeking Avenue. A copy of that consent has been provided as part of Exhibit B and the assessment reports as Exhibit 10. That development was approved, according to the assessment report, with a height of 24.6m and a floor space ratio (FSR) of 2.46:1. It comprises 7 residential floors above two carparking levels. 7Development to the south of the site comprises three dwelling houses that front Gatacre Avenue and a retail building on the corner of Gatacre Avenue and the Pacific Highway. 8Detached single and two storey dwelling houses are to the west of the site on the opposite side of Mafeking Avenue. That lower density development extends further to the south and west of the site. Background and the proposal 9The application as determined by the Joint Regional Planning Panel (JRPP) comprised a total of 123 dwellings in a 15 storey residential building with parking for 192 cars in three basement levels. The report to the Panel shows the building height to be 58.15m and FSR 4.1:1. The reasons for refusal of the application were principally the excessive height of the proposal and also the building was considered to be out of context with its surroundings and did not comply with planning controls contained within the Lane Cove Development Control Plan 2010 (DCP), the design principles for scale, built form, resource, energy and water efficiency and amenity contained in State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development and was not in the public interest. 10The applicant was granted leave by the Court to amend the application on 23 April 2104. Those plans are now the plans before the Court. The development proposed involves: * Demolition of all existing site improvements; * Removal of all vegetation on the site; * Removal of street tree planting adjacent to proposed driveway location; * Construction of an 11 storey residential flat building (RFB) over three levels of carparking; * Re-landscaping of the site. 11The carparking levels of the building involve site excavation to within 4m of the northern and southern boundaries and 5.5m to the street frontages. The height of the carpark structure varies, ranging from approximately 1m across the Pacific Highway frontage of the site to 7m in the south western corner of the site, and forms a podium on which the RFB is located. 12Vehicular access to the site is from two driveway crossings off Mafeking Avenue, one for service vehicles and the other for car and bike access. Apart from where these driveways are located and an area in the south western corner of the site required for a substation, the perimeter of the site would be landscaped and is designated as communal open space. Pathways, stairs and ramps provide access through that area. A green wall is proposed to screen the podium. 13The lower seven levels of the proposed building would be setback 7.5m from both road frontages with that setback to Mafeking Avenue increasing to approximately 9.5m at levels 7 and 8 and 15.5/19/5m at level 10. The setback to the highway varies, increasing to 11m at level 7, decreasing to 7.5m at levels 8, 9 and increasing again to 8.5m at level 10. 14Side boundary setbacks of the RFB portion of the building also vary with 9m setbacks to both the northern and southern boundaries from the ground floor to level 6 increasing to 12m from level 7 to 10. 15A communal rooftop terrace is proposed at the western end of level 10 and has an area of 161sqm. This area would accommodate seating and BBQ facilities and is surrounded by planter boxes. 16The rooftop would accommodate the lift, air-conditioning and other plant rooms associated with the structure and a private landscaped roof terrace to be allocated to unit 1003 and accessed internally via a stairway. 17The development would incorporate a total of 92 units of which 36 are one bedroom, 46 x 2 bedroom and 10 x 3 bedroom. Parking for 150 vehicles is proposed within the two parking levels with storage areas and bike spaces/lockers also provided. Lift access is provided to all levels apart from the rooftop. The planning controls 18Lane Cove Local Environmental Plan 2009 (LEP) applies to the site. Amendment 8 to the plan has particular relevance to the application and added Clause 1.8A(2) and varied the building height and FSR maps. Clause 1.8A(2) is in the following terms: A development application made (but not finally determined) before the commencement of Lane Cove Local Environmental Plan 2009 (Amendment No 8) for development on any of Lots 10-12, DP 1056023, or Lots 13-15, DP 1056023, is to be determined and have effect as if that plan had not been made. 19Amendment 8 took effect on 17 April 2014 and as the development application applies to Lots 13-15 and was lodged prior to this date, the clause applies. Lots 10-12 comprise the site No. 9 Mafeking Avenue. 20The site is zoned R4 - High Density Residential. Clause 2.3(2) of the LEP requires 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. 21The objectives of the R4 zone are: * To provide for the housing needs of the community within a high density residential environment. * To provide a variety of housing types within a high density residential environment. * To enable other land uses that provide facilities or services to meet the day to day needs of residents. * To provide for a high concentration of housing with good access to transport, services and facilities. * To ensure that the existing amenity of residences in the neighbourhood is respected. * To avoid the isolation of sites resulting from site amalgamation. * To ensure that landscaping is maintained and enhanced as a major element in the residential environment. 22Part 4 of the LEP applies to the Principal Development Standards. Those relevant to the application are found at 4.3 - Height of Buildings and 4.4 - Floor Space Ratio and are in the following terms: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to minimise any overshadowing, loss of privacy and visual impacts of development on neighbouring properties, particularly where zones meet, and (b) to maximise sunlight for the public domain, and (c) to relate development to topography. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. ..... 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to ensure that the bulk and scale of development is compatible with the character of the locality. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. ..... 23At the time the development application was lodged, the maps relevant to these clauses provide for a maximum building height of 12m and a maximum FSR of 4.1:1. 24The effect of Amendment 8 to the LEP as it applies to the site is to increase the maximum building height to 25m and reduce the maximum FSR to 2.4:1. 25Clause 4.6 provides for exceptions to development standards and, those parts relevant to the application are in the following terms: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) 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 zone in which the development is proposed to be carried out, and (b) the concurrence of the Director-General has been obtained. (5) In deciding whether to grant concurrence, the Director-General must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Director-General before granting concurrence. 26The Dictionary to the LEP contains definitions relevant to assessment of the application as follows: building height (or height of building) means the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like. ground level (existing) means the existing level of a site at any point. 27Lane Cove Development Control Plan 2009 (DCP) applies to the site. Part C.3 applies to residential flat buildings and has the following objectives: 1 To achieve a reasonable level of amenity for the residential flat buildings, neighbouring properties and the surrounding area. 2 To achieve sustainable development whilst providing a concentration of residents close to public transport and facilities. 3 To create entrances which provide a desirable residential identity for the development, orient visitors and contribute positively to the streetscape and building facade design. 4 To provide opportunities for lifestyle choice and dwelling mix. 28Other controls relevant to the contentions are at 3.5 - Setbacks; 3.8 - Excavation; 3.11 - Private Open Space (balconies and terraces); 3.12 - Number of Car Parking, Motorcycle and Bicycle Spaces; 3.15 - Solar Access; 3.16 - Natural Ventilation; 3.18 - Communal Open Space and 3.19 - Landscaped Area. 29Part F of the DCP applies to Access and Mobility and requires that adaptable housing is to be equitably distributed throughout all types and sizes of dwelling units. 30Specific residential localities are also recognised in Part 3 including the Mafeking Precinct with the following objectives said to be still relevant: (1)To provide new gateway development to mark the southern gateway into Longueville Road from Pacific Highway. (2)To provide improved safety and amenity for pedestrians and cyclists along Pacific Hwy and Longueville Rd. (3)To provide activation to Pacific Highway and Gatacre Avenue and improved amenity to Mafeking Avenue. (4)To provide improved and flexible amalgamation opportunities for development. (5)To provide high quality communal open spaces to the western boundary to Mafeking Ave (6)To provide a noise buffer, while maintaining reasonable solar access, for the residents to the south-west. (7)To provide appropriate transition to the adjoining residential uses. 31State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP65) and the associated Residential Flat Design Code (RFDC), State Environmental Planning Policy (Building Sustainability Index BASIX) 2004 (SEPP Basix) and State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) apply to the application. NSW Roads and Maritime Services has granted concurrence to the proposal subject to conditions which have been incorporated into the draft conditions of consent. The Pacific Highway carries in excess of 40,000 vehicles per day based on the traffic volume data published by the RMS. There is no evidence that the acoustic performance required under SEPP Infrastructure can be met. As clause 102(3) requires satisfaction, consent cannot be granted unless it can be demonstrated that the appropriate levels can be achieved. Accordingly, in the event that I find the application warrants approval, consent could not be issued until such time as the Court is satisfied the provisions of this clause are met. The issues 32The contentions in the case are whether: * the written objection to the development standards for height and FSR is well founded; * the siting and design of the development is appropriate in relation to its bulk and scale, setbacks and character; * there is adequate provision for solar access to the units; * adequate private and communal open space is provided; * the parking provision is adequate having regard to the number of tandem parking spaces; * the extent of excavation is appropriate; * adequate provision for accessibility is made; * an adequate number of adaptable units are provided; * the development adversely impacts on the amenity of adjoining properties; * the building would comply with the relevant provisions of the Building Code of Australia (BCA); * the site is suitable for the proposed development; * adequate information has been provided to allow proper assessment of the application; * the development would result in an undesirable precedent having regard to its height and the submissions received. 33The applicant has provided additional information in relation to compliance with the BCA, areas of open space, and accessibility and it is agreed that these issues can be addressed through the draft consent conditions. The evidence 34The hearing commenced on site with evidence heard from a number of residents and the part owner/operator of a nearby motel. The latter spoke in support of the development however expressed concerns in relation to the traffic associated with the construction phase. The residents spoke against the proposal with the following issues summarising their concerns: * Height significantly exceeds planning control of 12m; * Overdevelopment of the site; * Non-compliance with amendment 8 to the LEP; * Adverse impact on residential properties opposite the site in Mafeking Avenue, particularly in relation to solar impacts, noise and privacy; * Development would dominate the skyline, visually too large; * Inconsistent with the lower scale surrounding development; * Precedent to other land similarly zoned along the highway and opposite low density residentially zoned land; * Adverse parking and traffic impacts both during and post construction and concern that heavy vehicles will damage boundary retaining walls; * Loss of all trees from the site; * Health concerns due to proximity to the Lane Cove Tunnel ventilation stack 800m to the south; * Adverse impact on property values; * Inadequate infrastructure such as schools and sporting fields to support the additional population; * Aesthetics of the building, particularly the presentation of the carpark is poor. 35The view included an inspection of one of the objectors' homes and observation of the locality. At the request of the applicant, the redevelopment of a site at 15-25 Marshall Avenue at St Leonards was also viewed. Plans of that development have been provided as Exhibit 12. 36Expert evidence was heard from: Applicant Respondent Traffic H Van Hien J Cody Solar access/ventilation S King T Williams Urban Design R Dickson T Williams Town Planning A Darroch H Sanders Traffic and parking 37The experts agreed that the amendments made to the plans, now the Issue G plans, (Exhibit F), reflect their recommendations in relation to visitor and bike parking spaces and resolve those contentions; that the proportion of small parking spaces is acceptable; the Construction Management Plan is acceptable at this stage with further details to be provided prior to the issue of a Construction Certificate and the carpark layout satisfies the relevant design standards contained in AS/NZS2890.1:2004. 38They also agree that the amended development scheme has no unacceptable traffic implications in terms of road network capacity. Mr Van Hien made recommendations in relation to the carparking layout that were supported by Mr Cody and have the effect of reducing the number of spaces provided on site to 148, that number complying with the DCP control. The allocation of those spaces as shown at Annexure C to Exhibit 8 is agreed. 39The remaining contention relates to the number of tandem parking spaces proposed to meet the onsite parking demands for the development. Of the 148 spaces proposed in the Annexure B plans, 30 pairs of tandem spaces are included, representing 24% of the resident spaces. 40Mr Cody acknowledges that tandem spaces are not as convenient as single parking spaces however says that the way the spaces are allocated is important and that the scheme provides for the spaces to be allocated to 8 of the 3 bedroom and 22 of the 2 bedroom apartments. He says that it is likely that some of the residents of those apartments will only have one car in which case the tandem parking arrangement does not represent any inconvenience, that when some re-arrangement of cars is required, no safety issues of great significance occur and that the provision of 2 spaces as proposed rather than a reduced number of spaces to satisfy objective 1 of Clause 3.12 of the DCP (Reduce on-site carparking due to the proximity of pubic transport. Contain traffic congestion and facilitate use of public and alternative transport modes including walking and cycling) would be preferred by future residents. 41Mr Van Hien says that no more than 10% of the spaces should be tandem spaces as he considered residents would choose to park on surrounding local roads instead of the tandem space. That increased on-street parking could reduce driver visibility and effective road widths thus increasing the risk of accidents. He also cited the existing high level of use of the streets by commuters that would be exacerbated by the additional demand from the development. He could not quantify why 10% was an appropriate figure to adopt other than by reference to a figure used by an adjoining council. 42Mr Cody disagreed and said that residents would prefer the safety, proximity and convenience of using the spaces within the building. Solar Access and Ventilation 43The expert report (Exhibit 9) had been prepared on the basis of a solar access model prepared by Mr King. It became apparent to the Court during cross-examination of these experts that the plans used to indicate the development at No 9 Mafeking Avenue (No 9) were not consistent with the plans approved by the Council. This matter was addressed by the experts during the hearing who agree that the impact was not as great as originally thought and that the following table (Exhibit M) summarises the solar access available to units within the proposed development. The table takes into account the impact of No 9. 3 hours or more sunlight 9am-3pm June 21 to Living area 40units 43.5% 3 hours or more sunlight 9am-3pm to Habitable rooms 53units 57.6% Additional units which achieve 2hours or more sunlight 9am-3pm June 21 to Living areas 7units 7.6% Additional units which achieve 2 hours or more sunlight 8am-4pm June 21 to Living area 6units 6.7% Additional units which achieve 2 hours or more sunlight 8am-4pm June 21 to any habitable rooms 10units 10.9% 44The RFDC Rule of Thumb is that living rooms and private open spaces for at least 70% of apartments in a development should receive a minimum of three hours direct sunlight between 9am and 3pm in mid winter. In dense urban areas a minimum of two hours may be acceptable. The DCP differs and provides that 70% of habitable rooms, rather than living rooms, in high density residential developments should receive a minimum of three hours direct sunlight between 9am and 3pm on 21 June. 45Mr King says that 63 units or 68.4% satisfy the objectives of solar access amenity of minimum 2 hours in winter. He says that it is appropriate to apply the 2 hour control under the RFDC and to also include the sun available between 8 and 9am and 3 and 4pm as this sunlight can be extremely effective for non-north facing windows. This is particularly the case for the site, which has a long, north facing façade that is constrained by the development approved at No 9. He says that he didn't ignore the 3 hour control in the DCP for habitable rather than living areas when arriving at the 68.4% figure saying the sun is still there even if it's not to a living room and it's before 9 or after 3. 46Mr Williams disagrees and says that under the DCP definition, the proposal only achieves 53 of the units enjoying 3 hours sunlight to habitable rooms between 9am and 3pm. That represents 57.6%. Applying the RFDC concession of 2 hours to living rooms between those hours of 9-3, 47 units or 51% meet the Rule of Thumb. He says that it is not until the hours are stretched from 9am -3pm to 8am -4pm and that any part of a habitable room is acceptable, the 68.4% figure is reached and is still not the 70% sought under either control. 47It is common ground that the top 4 storeys of the RFB are non-compliant with the 25m height control that now applies to the site. The north and east facing units on those floors receive solar access for at least 3 hours per day at 21 June so the deletion of those floors has the obvious effect of reducing the number of units that would achieve good solar access. Mr King says those floors do not have impacts that he considers to be determinative in terms of overshadowing to adjoining properties. He also says that if the development on its lower levels was setback 6m from the northern boundary, rather than the 9m as proposed an additional 6 units would not achieve the required solar access as the result of the consent for No. 9. Mr Williams confirmed that he had provided advice to the council in relation to the impacts of the development at No 9 and that he had stated that the proposal would significantly overshadow the site and that any development on the site is unlikely to be able to achieve minimum solar access hours to its apartments. 48The RFDC and the DCP include a control that limits the number of single-aspect dwellings in high density residential developments which have a southerly aspect (SW-SE) to a maximum of 10% of the total dwellings. 18.5% of the dwellings within the proposed development have such orientation and therefore compliance with the control is not achieved. Mr King says that more careful scrutiny of the RFDC confirms that the Rule of Thumb is intended as a day lighting and natural ventilation control. Because the apartments so characterised are all 'wide and shallow' with 'triple fronted' layout in which every room enjoys excellent daylight quality, the same attributes, taken together with the stepped recessing of the three rooms, will ensure excellent natural ventilation in response to the prevailing south to south-easterly summer cooling breezes. He considers that the proportion of apartments with such aspect is for all intents and purposes unavoidable and the alternative of amalgamating the two dwellings per floor at the lower levels into a large three bedroom apartment would be a very poor outcome, locating the apartments most suitable for family formation and for downsizing retirees on the south façade. He concludes the proportion of south facing single aspect apartments is acceptable given the otherwise effective double loaded floor layout and the designs fulfilling the day lighting and natural ventilation performance objectives. 49Mr Williams disagrees and says the proportion of south facing units is unacceptable with the view that if such apartments are a very poor outcome for families and retirees, they are a very poor outcome for anybody. 50In regard to the external overshadowing impacts of the proposal, the experts agree that the impacts on the properties on the west side of Mafeking Avenue allows them to retain a sufficient amount of solar access to satisfy the DCP, SEPP65 and the RFDC. Mr King had prepared a table (page 14 of Exhibit 9) that shows the impacts on those properties and concludes the development will have no impact in terms of overshadowing on Nos 6, 8 and 10. Sun will be retained at No 4 from 9.30am to 3pm and retained at No 2 from 11am to 3pm however it will be lost prior to those hours at both sites respectively. 51In relation to the sites immediately to the south, being Nos 7, 5 and 3 Gatacre and the lot on corner of that street and the highway, a nominated development site, the experts agree that these sites will be significantly impacted by the proposal. 52Mr King concedes that the impacts of the building height above 25m will have additional impacts on the properties to the west and south, particularly those properties in the R2 zone. This can be seen from his shadow diagrams at pages 37-43 of Exhibit 9. He did note that the additional height resulted in a thinner building and that would reduce the time in which properties were overshadowed. Urban Design 53The experts agree that the site is within an area undergoing a transition in terms of its built form, that prior to the recent amendment 8 to the LEP, the previous FSR (4.1:1) and height limit (12m) was an unrealistic expectation for the site, that a building at 25m or higher is appropriate in this location along the Pacific Highway, the location of the Lane Cove Tunnel (LCT) under the site will limit the depth of basements and result in a podium along Mafeking Avenue and that podium will form a street wall varying in height from approximately 7-10m. The proposed green wall will assist in softening its appearance and reducing its apparent bulk. They also agree that the proposed front, side and rear setbacks, the modulations and articulations indicated in the elevations and the private open space in terms of size and arrangement are acceptable and will contribute to the future character of the area. 54They disagree as to the height of the proposed development along Mafeking Avenue. Mr Williams says the additional height will have amenity impact in terms of overshadowing of potential future development on the site immediately to the southeast and the apparent bulk of the upper four floors on the low-density residential areas to the south west and west of the site. Mr Dickson says that the height is acceptable as the houses will retain three hours sunlight on June 21 and the impact is not dissimilar from the overshadowing impacts of the recently approved building at No 9 Mafeking. 55Mr Williams says the development approved at No 9 is appropriate and demonstrates the realistic combination of building height to FSR, consistent with the LEP Amendment 8, allows for substantial development on the site whilst mitigating the potential visual and overshadowing impacts on the low-density residential areas adjacent. A development of 25m allows for developments on the site to the north and the subject site to achieve a FSR of 2.4:1 and he considers that there is no justification to go higher. The sites that comprise the Pacific Highway/Longueville precinct should be considered together as contributing to the Gateway or landmark position. A regular street wall height across the sites will provide a coherent and unified built form to a fairly chaotic urban context resulting in a strong Gateway gesture that will establish a character of order and equity. 56Mr Dickson says that because the site is located at a major freeway/highway intersection the built form in the precinct should form a landmark development. The approved form of development at No 9 is the result of the site configuration and has the consequence of overshadowing the site and for that reason is not an indication of appropriate height or built form. He says a consistent street wall can be achieved by the setback of the upper floors combined with different architectural treatments of these floors and that it is not necessary for the parapet line and the balustrades to align to create a perfect continuous street wall. He does not consider the additional height of the building (above 25m) will be perceptible and whilst it would have some visual impact, it is not substantive. 57Mr Williams says that any aesthetic treatments or architectural language are secondary to built form and scale. He disagrees with Mr Dickson in relation to the scale of the development and says that the additional height above the 25m building at No 9 would be very clearly perceived by residents in Mafeking Avenue and beyond who would view it as something very different in terms of scale. That difference would present as a distinct difference on either side of Mafeking Avenue with reference to the desired future character (DFC) of the locality. 58Whilst the experts agree that the landscape proposal for the ground floor is acceptable, they disagree whether the communal open space is appropriate. Mr Williams says that it will be exposed to south-westerly winds, be overshadowed in winter and exposed to the sun in summer. Mr Dickson says that it is acceptable in terms of its size and location , offers a quiet refuge for the residents while capturing district views with the raised planter beds providing some protection from the westerly winds. Planners 59The experts agree that the LEP as it applies to the application has maximum height controls of 12m and FSR of 4.1:1 but disagree on the calculation of the height of the proposed building. Mr Sanders says that it is 44.7m and Mr Darroch says that it is unless the existing ground level was taken to be the excavated basement level of the building currently on site it is 40.7m to the proposed lift overrun. They agree that Amendment 8 to the LEP varies these development standards to 25m (height) and 2.4:1 (FSR). 60Mr Sanders says the maximum height is exceeded by 32.7m noting that the site is located within an area which has been zoned for high density residential development but in which there has not been any developments undertaken consistent with that zoning and the development standards which apply. No 9 has been approved with a height, according to the assessment report, of 24.6m and FSR of 2.46:1, consistent with the new height control. He says that the area zoned for high density development is characterised by a range of buildings with none having heights similar to that which is proposed and the context in which the site is located should be considered. The proposed development, which would be some 50% higher than No 9 and very much higher than any other building in its vicinity, would appear as an incongruous and intrusive element in the streetscape and would, as a consequence, detract from and have a materially adverse impact on the amenity of the public domain. He considers these impacts are exacerbated by the form of the development sited on a podium that presents as a three-level structure, rising nearly 10m above ground level, to Mafeking Avenue, further exacerbated as a consequence of the elevation of the site above the level of that street. 61Mr Darroch says there is a mismatch between the height and FSR development standards. It is common ground that it would not be possible to build a RFB on the site that complied with the maximums provided for in both standards. He says that the development approved at No 9 is higher than suggested in the assessment report and would be even higher as a result of the conditions of consent that require additional clearances for service access and the provision of access to the rooftop terrace. He took the Court to levels of the site and those shown on the plans and I accept that the development as approved even without the amendments required to comply with the consent conditions would exceed the 25m height development standard that now applies to the site. 62Mr Darroch says the council abandoned the new planning controls even before they were gazetted with the development at No 9 so non-compliant with the existing suite of DCP and RFDC controls and the amended LEP control that redevelopment of the subject site is significantly compromised, due to its proximity to the approved building to the southern, common boundary with the site. The non-compliance with the controls of No 9 lead to the requirement to accommodate and off-set for those breaches on the subject site with increased setbacks and additional height. He notes the areas of non-compliance for No 9 as including height, setbacks, solar access, podium height/excavation, FSR, open space and cross ventilation. 63Mr Darroch says that the consequence of the consent for No 9 is that the proposed development must be higher so that it can achieve the solar access controls. He says, subject to the conditions that address balcony sizes, the design is compliant with all controls other than the LEP height control and the DCP height for basement above ground. The breach to the height of basement above ground level arises from the site being located directly above the LCT which restricts the extent of excavation however he notes the height of the podium is consistent with the adjoining site (No 9). 64The FSR of the proposal is 3.13:1 which, according to Mr Sanders, exceeds the new maximum FSR by some 1,800sqm but complies with the 4.1:1 development standard that applied to the site at the time the application was lodged. He says the breach of the new FSR is a further manifestation of the extent to which the proposed development may be considered to be inconsistent with the DFC of the locality, reinforcing his proposition that the development is of an excessive bulk and scale and has adverse impacts on the amenity of the locality. 65Mr Darroch says that the FSR of 4.1:1 has applied to the site since 2009 and must clearly be considered to be the anticipated and desired bulk and scale of the DFC of the area. 66Mr Sanders says the podium, due to its height above ground level, encroaches what should be a 6m side boundary setback (4m proposed) and there are adverse impacts associated with the visibility and usability of that space. Mr Darroch says that these concerns can be addressed by using the excavated material to raise the deep soil setback to align with the finished podium level at No 9 with a terraced and banked transition to Mafeking Avenue. Mr Darroch says this will reduce the impact of the podium when viewed from Mafeking Avenue. Plans were prepared to show how this could be achieved and the applicant seeks consent for these amendments shown on amendment landscape plans (Exhibit W). Those plans also address Mr Sanders' concerns in relation to privacy to open space allocated to the ground floor tenancies by allocating private courtyards to those units however he says the ground level communal area is just a landscaped area with pathways and the only area of any utility is the roof terrace. He says some aspects of the proposal are better however some are worse, particularly the introduction of retaining walls adjacent to the driveway entry off Mafeking Avenue. 67In response to the contention of inconsistency with the DFC, Mr Sanders cites the design principle for Context in clause 9 of SEPP65 which is in the following terms: Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area. 68He says the site is in an area undergoing transition with development anticipated in the context of the now applicable high-density residential zoning and the breach of the height controls (both currently applicable and recently amended) results in a building which will appear as an incongruous and intrusive element with these concerns being further reinforced by virtue of the area to the south west being zoned R2 Low Density Residential and characterised by low-density, single dwellings. Such an interface, with only the street providing a buffer, makes it all the more important for any development in the high density residential area in which the site is located to comply with the development standards such as the height control and only in this way will there be an appropriate interrelationship between the two zones and the development within them. 69Mr Darroch says that the relationship is characteristic of development under the LEP which zones sites along highways and corridors for high density with R2 zones on the opposite side of the street that runs parallel to those roads. He referred to the relationship in Marshall Avenue St Leonards as typical of such an arrangement. He says the proposal would be higher than its surrounds but this is clearly an area in transition which is intended to change in this way. He considers the height of the proposal is appropriately accommodated on the site as evidenced by the compliance of the building envelope and the high levels of amenity retained for the surrounding properties and for the future occupants. The bulk and scale is consistent with that envisaged by the 4.1:1 control and provides an appropriate compromise between the control and the amended control. 70The applicant provided additional information during the hearing that addressed the contentions in relation to additional information including BCA compliance, areas of communal open space, landscaping and usage of rooftop terrace and accessibility. 71The experts agreed that the contentions regarding provision for private open space and accessibility could be addressed by conditions and these have been incorporated into the draft conditions provided to the Court after the hearing. 72Those conditions are agreed with the exception of the allocation of adaptable units. The parties agree that 19 units should be provided however the applicant proposes to allocate those units as units 01, 07 and 08 on levels 1-6 and unit 02 on Level 10. That would provide for 12 x 1 bedroom units and 7 x 2 bedroom units. Mr Sanders says that the distribution should, as required by the DCP, be equitable, and this requires the allocation to be proportionate to the unit mix. As a consequence, the council proposes an alternate condition that requires 8 x 1 bedroom, 9 x 2 bedroom and 1 x 3 bedroom units to be adaptable. 73Mr Darroch disagrees with Mr King in relation to the effect of the development on the redevelopment of the lots to the south in Gatacre Avenue. He had prepared a hypothetical building envelope applying the Amendment 8 development standards and DCP controls, sketched that envelope (Exhibit T) and superimposed it on Mr King's shadow diagrams (Exhibit U). He says these demonstrate that it is possible to construct a complying development on the adjoining site that would meet the 2 hour solar access requirements for 70% of the dwellings. 74Mr Darroch, in acknowledging the increased height proposed would cast shadows beyond that cast by a 12 or 25m high structure, says the impact of that shadowing as shown on Mr King's diagrams must be considered against the heavy vegetation within those properties to the west of Buller Lane. 75These experts held opposing views as to whether the additional height above the 25m would be noticeable. Mr Darroch says that you would be looking more at No 9 when walking east up Mafeking Avenue and it would become more obvious as you get closer to the site. Mr Sanders disagreed and says you will see the building height and it will be very prominent. The clause 4.6 variation 76It is common ground that the proposal does not comply with the development standard for height in clause 4.3 of the LEP and that, for consent to be granted in contravention of that standard, the consent authority must consider a written request from the applicant that seeks to justify the contravention. 77Mr Darroch prepared the original objection to the application as lodged with the council and an amended written objection reflecting the amended plans that are now before the Court. That document is Exhibit N. The Court, pursuant to Section 39(6)(a) of the Land and Environment Court Act 1979 (LEC Act), can stand in the shoes of the Director-General for the purposes of clause 4.6(4)(b). 78The reasons put by Mr Darroch to vary the 12m height control are summarised as: * The proposal closely follows the form of anticipated development on the site that provides for a FSR of 4.1:1 and consistent with the RFDC and DCP controls. The resultant building contains 3 car parking levels above the LCT, 7 residential levels setback 9m from side boundaries and a further 4 levels setback 12m. * A development on the site that would not breach the 12m height would result in 4 residential levels above a single level of parking with 6m setbacks from side boundaries and would achieve a FSR of approximately 1.5:1, or 36.5% of the desired FSR. * The objectives for the Mafeking Locality determine the DFC and could not be met by a development that followed the 12m height control, particularly a gateway development. * The site forms part of the Pacific Highway corridor from North Sydney to Chatswood and beyond with heights of 50-60m characteristic and consistent along its length. * The gateway buildings to the north-east of the same intersection have a height of approximately 48m. * The objectives of the height control are met having regard to the unique set of site characteristics. * The bulk and scale of the building is consistent with the DFC and a compliant building would be uncharacteristic by unnecessarily depressing the whole of the building form. * The proposal does not give rise to any environmental effect of sufficient significance. * The provision of desired housing in a highly accessible location is on balance an appropriate environmental outcome. * The proposal achieves the objectives of the standard as the proposal minimises any overshadowing, loss of privacy and visual impacts for neighbouring properties. * The proposal provides an appropriate transition in built form and land use intensity consistent with the topography and the location of the site on the Pacific Highway corridor ridge. * The proposal meets the objectives of the zone as it improves the provision for housing in a high concentration with good access to transport, service and facilities and by improving the amenity of the offering and increasing the vitality of the locality. * The proposal is consistent with the desired urban renewal and achieves the pattern of land use and density that reflects the existing and future capacity of the transport network. * Existing amenity of residences in the neighbourhood is respected and improved. * The proposal avoids isolation of sites and provides an appropriate amalgamation. * The proposal maintains and significantly enhances the landscaping as a major element in the residential environment. * There are no matters of state or regional significance. * The proposal is consistent and compatible with the neighbouring sites in terms of its bulk, scale and character and there is no public benefit in maintaining the development standard. 79There are a number to tests that I must be satisfied of before consent can be granted. Firstly, that the written consent justifies that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (clause 4.6(3)(a). Secondly, that there are sufficient environmental planning grounds to justify contravention of the development standard (cl 4.6(3)(b). Thirdly, that the proposed development is in the public interest because it is consistent with the objectives of the development standard and the objectives for development in the R4 zone (cl 4.6(4)(a)(ii). 80Further, as required by clause 4.6(5), I must consider whether contravention of the development standard raises any issue of significance for state or regional environmental planning and whether there is any public benefit in maintaining the development standard. There are no other prescribed matters to be considered under subclause (c). 81The development standard that I must have regard to is the 12m control for building height. 82The objectives of the development standard for height are to minimise any overshadowing, loss of privacy and visual impacts of development on neighbouring properties, particularly where zones meet, to maximise sunlight to the public domain and to relate to topography. 83Having regard to the evidence in relation to overshadowing, I am not satisfied that the design of the development minimises overshadowing of neighbouring properties. The 12m height line is shown on the elevation plans included in Exhibit A. It bisects the residential tower at the ceiling level of Level 1 units (2nd storey) at the Mafeking Avenue frontage and extends part way through the Level 2 units (3rd storey) at the Pacific Highway end of the property. It is apparent that the impacts of a building that maintained that height would be far less than the overshadowing impacts of a building of the height proposed, regardless of the precise building height as determined from the definition. 84The majority of evidence provided during the hearing focussed on the difference between a building of 25m height to that proposed however, my interpretation of the shadow diagrams prepared by Mr King in pages 37-43 of Exhibit 9 is that the impacts of a 12m building on the neighbouring properties, particularly those where the R4 zone meets the R2 zone, that is, those properties on the western side of Mafeking Avenue including those properties that front Gatacre Avenue to the southwest, would be significantly reduced if the building was compliant with the height control. Only the early morning sun would be lost and would be regained by 10am to all of these properties. 85The consequence of a building over three times the height control would not minimise the overshadowing of the adjacent development site to the south. A compliant building would have no impact on the dwellings on the southern side of Gatacre Avenue at any time whereas the proposal impacts these properties at 2pm. The fact that the dwellings would maintain three hours solar access does not, when assessing the objectives of the control, demonstrate that the impact of the proposal minimises the overshadowing impact. 86The design of the development has taken into consideration visual privacy and I am satisfied that appropriate separation distances are in place to protect the privacy of adjoining properties. 87Other than the public roadways of Mafeking and Gatacre Avenues and Buller Lane, the development does not impact on the public domain. The impact of the additional height on these places would not be determinative. 88I accept the evidence of Mr Williams and Mr Sanders that the additional height would be obvious and prominent and not consistent with the DFC envisaged under the LEP height controls. Accordingly, I am not satisfied that the design of the development minimises its visual impact. That impact is one of the major issues raised by residents who objected to the proposal. Whilst I accept that the 4.1:1 FSR control applying to the site does not accord with the 12m height control, both development standards are maximums and regard must be had to the location of the sites. This is particularly important at the zone interface as highlighted in the objectives. This fact is recognised in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 where it relevantly states at [25]: As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like. 89The expectation of the objectors is that the site would contain a building 12m in height or, at the greatest, 25m, consistent with the Amendment 8 development standard now applying to the site. It is apparent they do not regard the FSR as any indicator as to the ultimate development the site could contain. 90The provisions of clause 4.6 are not dissimilar to those in State Environmental Planning Policy No. 1 - Development Standards (SEPP1). In Wehbe v Pittwater Council [2007] NSWLEC 827 Preston CJ considered the conflict in development standards at [60]: Although the power under SEPP 1 is wide (see, for example, Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 203 affirmed (1990) 69 LGRA 201 at 203, 210), it needs to be exercised on the grounds in SEPP 1 relating to the development standard and the circumstances of the case. It does not allow a consent authority to dispense with compliance with a development standard merely in order to bring about conformity with some other planning control. SEPP 1 does not permit the consent authority to rank in order of importance planning controls applicable to the land and the proposed development, and give precedence to other planning controls over the development standard. 91I accept that the LCT is a constraint as to how much excavation can occur on the site however, as demonstrated by the plans for No 9, a smaller building requires less parking and therefore less excavation of the site. The site has a cross fall of around 7m and the building does not follow that topography. Whilst the urban designers acknowledge that the podium provides a solid base to the building, the plans for the redevelopment in Marshall Avenue, show how a building can step down the site and provide an active frontage at the zone transition, relating to the topography. 92Having regard to the objectives of the zone, the development does provide for housing that meets the needs of the community with a variety of housing types within a high density residential environment however, so too would a residential flat building of 12m height. That form of development may not be considered to be a high concentration. The proposal does no isolate sites to the south from achieving development potential. The proposal is not antipathetic to these objectives. 93The development does not incorporate other land uses that provide facilities or services to meet the day to day needs of residents, nor does it maintain the existing landscaping however I am satisfied from the evidence provided that the replacement planting is satisfactory. 94The excessive height, bulk and scale of the development does not respect the existing amenity of residences in the neighbourhood. 95Pursuant to cl 4.6(4)(ii), I find that the proposal is inconsistent with the objectives of the height development standard and objective 5 of the R4 zone objectives. For that reason, development consent cannot be granted. Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? 96Wehbe provides the tests that determine whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. One of these is to determine whether the objectives of the standard are met. I have found that they are not. 97Having regard to the other tests in Wehbe, I do not consider the underlying objective or purpose of the standard is irrelevant to the development, that those objectives would be thwarted if compliance was required or that, through the grant of consent to No 9 Mafeking, the development standard has been virtually abandoned. Nor is the zoning or the site unreasonable or inappropriate so that the development standard is also unreasonable or unnecessary. 98I do have regard to the particular circumstances of the case that provide for an increased building height under Amendment 8 however, that increase is to 25m only and not 40m+ as proposed under the proposal currently before the Court. This fact does not demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard. 99For the reasons outlined above, having found that the objectives of the development standard are not met, I do not accept that the applicant has established that compliance would be unreasonable or unnecessary or that there are grounds that justify contravention of the development standard to the extent proposed. 100For completeness, there are no matters of significance to State or regional environmental planning that have been raised relevant to my determination however I do consider, given the infancy of the amendments to the council's zoning controls and the proximity to low density residential development that there is public benefit in maintaining the development standard because the proposed building would be inconsistent with the DFC for the locality. Conclusion and findings 101Having found that the objection to development standard for building height should not be upheld, the preconditions to the grant of consent have not been met and therefore, a full assessment of the application under the provisions of s79C of the Environmental Planning and Assessment Act 1979 is not required. However, based on my findings in relation to the size, bulk, scale and height of the proposed development, such merit assessment of the application would demonstrate the site is not suited to the development proposed. 102The Orders of the Court are: (1)The appeal is dismissed. (2)Development Application is refused consent. (3)The exhibits, other than exhibits A, C, D, E, F, W and1 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. Decision last updated: 09 May 2014