Land and Environment Court New South Wales Medium Neutral Citation: Abdul-Rahman v Ashfield Council [2015] NSWLEC 1122 Hearing dates: 14-15 April, 2015 Date of orders: 28 April 2015 Decision date: 28 April 2015 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. 2014.167.1 for the demolition of existing structures and construction of a four storey residential flat building with basement parking at 412-416 Liverpool Road, Croydon, is refused. 3. The exhibits, other than exhibits 1, 8 and F, are returned. Catchwords: DEVELOPMENT APPLICATION: residential flat building in a mixed use zone; affordable rental housing component; number of storeys; height development standard; gross floor area within the top 3m of height limit; contravention of the height of buildings development standard; internal amenity. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 Category: Principal judgment Parties: Mr Omar Abdul-Rahman (Applicant) Ashfield Council (Respondent) Representation: Counsel: Mr P. Clay SC (Applicant) Ms P. Burns Solicitor (Respondent) Solicitors: Conomos Legal (Applicant) Maddocks Lawyers (Respondent) File Number(s): 10701 of 2014 Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2014.167.1 for the demolition of existing structures and the construction of a four storey residential flat building with two basement levels of parking and a component of affordable rental housing (the proposal) at 412-416 Liverpool Road, Croydon (the site) by Ashfield Council (the Council). 2. The appeal was subject to mandatory conciliation on 2 December, 2014, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979. As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 17 December, 2014, pursuant to s 34(4) of the LEC Act. Issues 1. The Council's contentions in the matter can be summarised as: * The proposal is of excessive height, bulk and scale; * The proposal does not provide suitable setbacks to Liverpool Road and Wetherill Street; * The proposal is not compatible with the character of the area; * The internal amenity of the proposal is poor; * The proposal provides inadequate open space and landscaping. The site and its context 1. The site is on the southern side of Liverpool Road, on the corner of Wetherill Street and to the west of the intersection of Liverpool Road and Frederick Street/Milton Street. The site is currently occupied by a commercial car wash facility. 2. There is a Caltex service station adjoining the site to the east and an independent service station on the opposite corner of Wetherill Street and Liverpool Street. 3. There are residential flat buildings setback from the road boundary, further to the west on Liverpool Road and residential flat buildings and dwellings on the opposite side of Liverpool Road, also setback from the road boundary. 4. There are single storey detached and semi-detached dwellings in Wetherill Street, to the south of the site, that are within a heritage conservation area. 5. There are retail and commercial premises close to the intersection of Liverpool Road and Frederick Street/Milton Street will no setback from the road boundary. Development consent for a mixed use development, on the north-eastern corner of the Liverpool Road and Frederick Street intersection, was recently granted by the Court (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009). Background and the proposal 1. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 22 January, 2015, for the applicant to rely on an amended proposal. 2. The proposal was further amended prior to the hearing and the Court granted the applicant leave to rely on the amended proposal (exhibit A) at the commencement of the hearing, on the basis agreed by the parties pursuant to s 97B of the EPA Act. The proposal was amended a final time during the hearing and leave was unopposed and granted for the applicant to rely on the further amended proposal (exhibit F). 3. The proposal (exhibit F) consists of 25 apartments over 4 levels and basement parking, as follows: * Two basement levels accessed from Wetherill Street containing parking spaces for 33 cars; * Ground Floor: 2 studio apartment; 3 one bedroom apartments; 2 two bedroom apartments; common open space; * First Floor: 1 studio apartment; 1 one bedroom apartment; 5 two bedroom apartments; * Second Floor: 1 one bedroom apartment; 5 two bedroom apartments; * Third Floor: 2 studio apartments; 3 two bedroom apartments. 1. The proposal includes three adaptable apartments, G06, G07 and 107. The proposal includes five apartments, G01, G06, 103, 106 and 202, to be allocated for the purpose of affordable rental housing (pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) and the five apartments represent just over 20% of the gross floor area of the proposal. 2. The proposal consists of a wing of apartments orientated to Liverpool Road, with no setback from the Liverpool Road boundary or the Wetherill Street boundary on all four levels. The proposal has a secondary, rear wing fronting Wetherill Street, with a small setback from the boundary at the Ground Floor to the private open space of G01 and G02 and a 4m setback from the boundary on the upper levels. The upper levels of the rear wing step back from the rear boundary to 15 Wetherill Street, from 3.5m at Ground Floor to 14.4m on Level 3. The proposal has an area of deep soil landscaping in the south-eastern corner of the site. Planning framework 1. The proposal is made pursuant to SEPP ARH. The relevant aims of SEPP ARH at cl 3 include: (a) to provide a consistent planning regime for the provision of affordable rental housing, (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, (d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing, (e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing, (f) to support local business centres by providing affordable rental housing for workers close to places of work, (g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation. 1. Clause 13 of SEPP ARH Floor Space Ratios, provides the following: (1) This clause applies to development to which this Division applies if the percentage of the gross floor area of the development that is to be used for the purposes of affordable housing is at least 20 per cent. (2) The maximum floor space ratio for the development to which this clause applies is the existing maximum floor space ratio for any form of residential accommodation permitted on the land on which the development is to occur, plus: (a) if the existing maximum floor space ratio is 2.5:1 or less: (i) 0.5:1—if the percentage of the gross floor area of the development that is used for affordable housing is 50 per cent or higher, or (ii) Y:1—if the percentage of the gross floor area of the development that is used for affordable housing is less than 50 per cent, where: AH is the percentage of the gross floor area of the development that is used for affordable housing. Y = AH ÷ 100 1. Clause 16A of SEPP ARH requires that a consent authority must not consent to development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 2. The proposal is subject to the provisions of State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) at cl 101 'Development with frontage to classified road' (Liverpool Road). The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied, at sub-cl (2)(c) that the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. 3. The proposal is subject to the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings (SEPP 65) at cl 4(1)(a). 4. Consideration is to be given to the design quality of residential flat development, when evaluated in accordance with the design quality principles, at cl 30(2)(b) of SEPP 65 and the publication Residential Flat Design Code (RFDC) at cl 30(2)(c). 5. The RFDC supports the ten design quality principles identified in SEPP 65 and gives greater detail in how to achieve these principles in development proposals. 6. The relevant design quality principles of SEPP 65 are: Principle 2: Scale Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area. Principle 6: Landscape Good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in greater aesthetic quality and amenity for both occupants and the adjoining public domain. Landscape design builds on the existing site's natural and cultural features in responsible and creative ways. It enhances the development's natural environmental performance by co-ordinating water and soil management, solar access, micro-climate, tree canopy and habitat values. It contributes to the positive image and contextual fit of development through respect for streetscape and neighbourhood character, or desired future character. Landscape design should optimise useability, privacy and social opportunity, equitable access and respect for neighbours' amenity, and provide for practical establishment and long term management. Principle 7: Amenity Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility. 1. The RFDC Part 3 Building Design, Building Configuration, Apartment Layout includes the following: Objectives * To ensure the spatial arrangement of apartments is functional and well organised. * To ensure that apartment layouts provide high standards of residential amenity. * To maximise the environmental performance of apartments. * To accommodate a variety of household activities and occupants' needs. Better Design Practice * Design apartment layouts, which respond to the natural and built environments and optimise site opportunities by: – locating habitable rooms, and where possible kitchens and bathrooms, on the external face of the building thereby maximising the number of rooms with windows – maximising opportunities to facilitate natural ventilation and to capitalise on natural daylight, for example by providing: corner apartments, shallow, single aspect apartment – Avoid locating kitchen as part of the main circulation spaces of an apartment, such as hallway or entry space Rules of Thumb Single aspect apartments should be limited in depth to 8m from a window. The back of a kitchen should be no more than 8 metres from a window. 1. The RFDC Part 3 Building Design, Building Configuration, Ground Floor Apartments includes the following: Ground floor apartments are special because they offer the potential for direct access from the street and on-grade private landscape areas. They also provide opportunities for the apartment building and its landscape to respond to the streetscape and the public domain at the pedestrian scale. Better Design Practice * Design front gardens or terraces, which contribute to the spatial and visual structure of the street while maintaining adequate privacy for apartment occupants. This can be achieved by : animating the street edge, for example, by promoting individual entries for ground floor apartments. This creates more pedestrian activity along the street and articulates the street edge by: – balancing privacy requirements and pedestrian accessibility – utilising a change in level from the street to the private garden or terrace to minimise site lines from the streets into the apartment for some apartments * Ensure adequate privacy and safety of ground floor units located in urban areas with no street setbacks, by: – Stepping up the ground floor from the level of the footpath a maximum of 1.2m * Promote housing choice by: – Providing private gardens, which are directly accessible from the main living spaces of the apartment and support a variety of activities Rules of Thumb Provide ground floor apartments with access to private open space, preferably as a terrace or garden 1. The site is zoned B4 Mixed Use pursuant to Ashfield Local Environmental Plan 2013 (LEP 2013) and the proposal is permissible with consent. The objectives of the B4 Mixed Use zone, to which regard must be had at sub-cl 2.3(2) are: * To provide a mixture of compatible land uses. * To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. * To enhance the viability, vitality and amenity of Ashfield town centre as the primary business activity, employment and civic centre of Ashfield. * To encourage the orderly and efficient development of land through the consolidation of lots. 1. Clause 4.3 Height of Buildings of LEP 2013 includes the following provisions: (1) The objectives of this clause are as follows: (a) to achieve high quality built form for all buildings, (b) to maintain satisfactory sky exposure and daylight to existing buildings, to the sides and rear of taller buildings and to public areas, including parks, streets and lanes, (c) to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings, (d) to maintain satisfactory solar access to existing buildings and public areas. (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. (2A) If a building is located on land in Zone B4 Mixed Use, any part of the building that is within 3 metres of the height limit set by subclause (2) must not include any area that forms part of the gross floor area of the building and must not be reasonably capable of modification to include such an area. 1. The height of buildings development standard for the site is 13m (Height of Buildings Map Sheet HOB_001 LEP 2013) and the proposal is 13.73m and the floor space ratio (FSR) development standard for the site is 1.5:1 (FSR Map Sheet FSR_001 LEP 2013) and the FSR of the proposal is 1.49:1. 2. Clause 4.6 Exceptions to development standards of LEP 2013 permits variation of the development standards, as follows: (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. 1. There is no development control plan to support LEP 2013. Until a comprehensive DCP commences, Council has adopted an Interim Development Assessment Policy (IDAP). 2. The site is at the far western end of the 'Ashfield West' precinct, which includes the properties fronting Liverpool Road between Wetherill Street to the west and Thomas Street to the east. The 'Ashfield West' precinct is addressed in the IDAP at Part C4. 3. The IDAP includes the following control for maximum building height, in Section 2, cl 2: Maximum building heights are shown on the Ashfield LEP 2013 Building Heights Map, and are affected by the limitation in Clause 4.3 of Ashfield LEP 2013, see the explanatory notes in Figure 1. The maximum number of storeys are shown in Map 2 which defines the maximum desired building scale for Ashfield West, generally measured to the parapet edge or roof pitching point of a building. N Map 2 (extract) 1. On Map 2, the site is located on the far left side of the area included within the black line (which denotes 'Ashfield West'), on the southern side of Liverpool Road. Map 2 includes a maximum building height for the site of 13m and a note '3 St', denoting 3 storeys. The relevant principles on map 2 for the site is as follows: Amenity Principle (green dot) Above ground level, dwellings to have dual aspect apartments with living areas oriented away from traffic noise to 'quiet zone' at rear of the site. Urban Design Principle[s] (pale blue/green shade) 6m setback to front building line (purple line) Building height to reduce in scale to be sympathetic to building heights on adjacent properties 1. Clause 3, Section 2 of Part C4 includes the following in regard to building locations: Buildings should be located and arranged in a way which gives spatial definition to the road and provides surveillance of the public domain. Refer to Map 2 which shows site locations for: - buildings with zero front setbacks for spatial definition of corner areas and containing ground floor non- residential uses, OR - buildings tp be setback from the front boundary to enable landscape areas for tall tree planting. Refer also to Section 3 - Landscape and Map 3 - Landscape Areas for the location and minimum width requirements for deep soil planting areas. Buildings within locations where front setbacks apply - see Map 2 - shall have a minimum setback to the front building line (see Definitions) of 6 metres in order to provide uniformity, order, and continuity of building form along the public domain. 1. The IDAP includes the following controls for landscape in Section 3 of Part C4: Main road frontage and building structure setbacks for front gardens and trees 1 Development must provide a building setback including a setback to any basement levels to enable a 3 metre wide deep soil planting area (see Definitions) along the main road frontage for establishment of tall trees (tree species will be specified by Council) as shown on Map 3 – Landscape Areas and in Figure 2. A 3 metre deep soil width is required in order to have adequate soil volume, drainage conditions etc. for trees to thrive and sufficient width to allow for tree canopies. Communal Open space 2 For apartment development to which State Environmental Planning Plan No. 65 applies, communal landscape areas must be provided for the sites identified in Map 3, complying with SEPP 65 Residential Design Flat Code area requirements. Communal open space (see Definitions) may be located either at ground level and/or on the roof of a building e.g. as a rooftop garden/courtyard. Trees Trees to be planted along the frontage of sites, as required by Clause 1, shall be - - planted at a minimum initial height of 1.8m; - species approved by Council; - planted at regular intervals. 1. Map 3 of Section 3 of IDAP shows a 3m minimum deep soil zone along the frontage of Liverpool Road for streetscape improvement and public amenity and visual amenity for residents in dwellings facing the road. 2. Section 4 of Part C4 of IDAP requires lift lobbies for residential flat development at ground level to be a minimum of 5m [wide?] and have glazing a minimum of 2.1m high in order to achieve adequate visibility and surveillance of the street. Public submissions 1. Five resident objectors provided evidence at the commencement of the hearing on site. Their objection to the proposal can be summarised as: * The proposal will create a precedent for the overdevelopment of adjoining sites; * The fourth storey of the proposal is too high and the proposal is an overdevelopment of the site; * The proposal should be setback from Liverpool Road; * The proposal will impact on the heritage significance and amenity of the dwellings in Wetherill Street; * The proposal may overshadow and overlook the dwelling to the rear at 15 Wetherill Street. 1. A planner engaged by the Caltex service station adjacent to the site provided evidence on behalf of Caltex. Caltex objects to the nil setback of the proposal from the Liverpool Road boundary, as the proposal would obstruct views to the Caltex sign adjacent to the site. Alternatively, Caltex would like the applicant to pay for the sign to be moved to the eastern corner of the Caltex property. Expert evidence 1. Expert planning evidence was provided by Mr Stuart Harding on behalf of the applicant and Mr Phillip North on behalf of the Council. Height 1. The applicant provided a written request for an exception to the height of buildings development standard (exhibit G). According to the applicant, the proposal exceeds the 13m height of buildings development standard by 730mm (exhibit 8, p2) and contains gross floor area within 3 metres of the height limit. According to the applicant's written request, it is unreasonable and unnecessary for the proposal to comply with the building height development standard for the following reasons: * The FSR of the proposal complies with the development standard imposed by SEPP ARH; * The bonus FSR incentive of SEPP ARH would necessarily result in an increase in the building envelope of the proposal and in this proposal it has resulted in a non-compliance with the height of buildings development standard; * The non-compliance with the height of buildings development standard is modest; * The proposal remains compatible with the character of surrounding development; * The proposal satisfies the objectives of the height of buildings development standard and the B4 Mixed Use zone; * The bulk of the proposal is sited towards Liverpool Road boundary 1. The experts disagreed on the calculation of gross floor area located within 3 metres of the height limit, pursuant to cl 4.3(2A) of LEP 2013. Mr Harding measured the gross floor area at 1.4m above the finished floor level (FFL) of level 3, concluding that the non-compliance was a vertical height of 1.4m to 1.9m (exhibit G, p2). According to Mr North, the whole of the fourth level does not comply with cl 4.3(2A). 2. According to Mr North, the existing context of the site is one of relatively low height and density with maximum height within the visual catchment of the site of three storeys, and four storeys would create a noticeably different streetscape character. In his view, the scale of the proposal to Liverpool Road is excessive and that greater bulk could be located at the rear of the site, with a 3m rear setback to a two storey component at the rear. Setbacks 1. The planning experts disagreed on the appropriate setback to Liverpool Road. According to Mr North, the proposal should be setback 6m from the Liverpool Road boundary, as this setback is consistent with the IDAP controls and provides a transition between the B4 Mixed Use zone and the R3 Residential zone to the west of the site. According to Mr Harding, the site is the first site in the commercial zone (when approaching the site from the west) and the commercial zone does not need a transitional site and a nil setback is appropriate. Internal amenity 1. According to Mr North, the access to G07 is ambiguous and may be difficult to locate for a visitor. 2. The planning experts agreed that the lobby does not need to be 5m wide. Findings 1. In relation to the weight to be given to the IDAP, I adopt Commissioner Pearson's reasoning in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009, as follows: 42 The IDAP is not a development control plan adopted in accordance with the procedure specified in Part 3 of the Act and Part 3 of the Environmental Planning and Assessment Regulation 2000. It was adopted by the Council on 10 December 2013 as an interim document, referred to in the report to the Council meeting as "an administrative update" to Ashfield Development Control Plan 2007 which related to the now repealed Ashfield Local Environmental Plan 1985 (the 1985 LEP) (exhibit A, p 65). The planners agreed that the amendments to the IDAP that inserted Part C4 Ashfield West were adopted on 23 September 2014, and that there was no public exhibition of those new provisions, and therefore no consideration of any public submissions in relation to those provisions before they were adopted by the Council (exhibit 5, p10). I accept that evidence. 43 As an expression of the Council's policy approach to development assessment, in a documented form adopted by the Council, the IDAP is a relevant consideration as an aspect of the public interest under s 79C(1)(e) of the Act: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195. The weight to be given to such a policy was discussed by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472: 91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options. 92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows: · the extent, if any, of research and public consultation undertaken when creating the policy; · the time during which the policy has been in force and the extent of any review of its effectiveness; · the extent to which the policy has been departed from in prior decisions; · the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; · the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; · whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. 44 In the present context, the policy reflected in Part C4 of the IDAP was not the subject of public consultation. The Council's solicitor informed Four2Five's solicitor that no specific research was undertaken, and that the IDAP was based on the experience and knowledge of Council's planners who prepared the policy (exhibit A, p 65). It is apparent from the diagram exhibited during the public exhibition period for the LEP, which notes that "maximum number of storeys and maximum ceiling height to be specified in DCP" (exhibit 11), that the IDAP is consistent with the Council's intention that controls for the maximum number of storeys will eventually be incorporated in its DCP. I accept that the IDAP is intended to guide decision-making in the interim before a DCP is made. However, the particular expression of policy as to the number of storeys in Part C4 has been in force only since September 2014, after the development application the subject of this appeal was lodged. More significantly, to the extent that Part C4 may represent a formalisation of the policy approach suggested in the documents exhibited during the public exhibition period for the LEP, that policy was departed from in the Council's decision in July 2014 to approve a modification application for the development at 380 Liverpool Road, to permit a seven storey development on that corner. In those circumstances, it is not appropriate to give the policy reflected in Part C4 of the IDAP any significant weight in determining whether seven storeys for the southern part and four storeys for the northern part of the building should be approved. 45 In the absence of a control in the LEP, or a DCP which could (subject to s 79C(3A) of the Act) specify the maximum number of storeys, and where the provisions of Part C4 of the IDAP can be given little weight, I accept the submission of Four2Five that an acceptable approach to determining the number of storeys that could be permitted is to consider the number that could fit within the maximum allowable height limit. Contravention of the height of buildings development standard 1. In order for development consent to be granted for a development that contravenes a development standard in LEP 2013, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2013) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2013) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2013). 2. The relevant objectives for the height of buildings, at sub-cl 4.3(1) of LEP 2013 is to achieve high quality built form for all buildings, to maintain satisfactory sky exposure and daylight to existing buildings and to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings. 3. I accept the argument put by the applicant that the consequence of the SEPP ARH incentives, which seek to facilitate the effective delivery of new affordable rental housing by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, is to expand the permissible building envelope for a site in some way, although pursuant to cl 16A of SEPP ARH, any increase of the building envelope has to be compatible with the character of the local area. In this matter, the proposal complies with the FSR development standard in LEP 2013 and does not seek the benefit of the FSR incentive of SEPP ARH at cl 13, however the principle of an expanded building envelope in recognition of the contribution of affordable rental housing made by the proposal is still relevant. 4. While the existing context of the site might be one of relatively low height and density with maximum heights within the visual catchment of the site of three storeys, the future character of development within the visual catchment of the site is not going to be one of relatively low heights and densities. The Height of Buildings Map in LEP 2013 demonstrates the likely future character of the visual catchment of the site and based on the maximum height limits along Liverpool Road, one will be able to see buildings ranging in height from 23m (seven storeys) on the corner of Liverpool Road and Frederick Street/Milton Street; 13m (four storeys) from the corner of Liverpool Road and Milton Street and along Liverpool Road to the site; 12.5m (four storeys, or three storeys with an attic) to west of the site; and 17m (five storeys), 13m and 8.5m on the opposite side of Liverpool Road. N Height of Buildings Map Sheet HOB_001 LEP 2013 (extract) I 8.5m J 9m M 12.5m N 13m P 17m S 23m 1. The Land Zoning Map in LEP 2013 shows the site at the western end of the B4 Mixed Use zone fronting Liverpool Road. The R3 Medium Density Residential zone continues to the west fronting Liverpool Road and the R2 Low Density Residential zone is to the south of the site. N Land Zoning Map Sheet LZN_001 LEP 2013 (extract) 1. Adopting Commissioner Pearson's reasoning that an acceptable approach to determining the number of storeys that could be permitted is to consider the number that could fit within the maximum allowable height limit, I am satisfied that the overall height of the proposal and the number of storeys is appropriate to the conditions of the site and its context and the proposal is consistent with the likely future character of the local area and the variety of other development in the locality, notwithstanding its non-compliance with the 13m maximum height for the site and that the upper floor is located within the top 3m of the 13m height limit. Importantly, the fourth storey has no amenity impacts on the low density residential zone to the south of the site. 2. The ground floor level of the proposal, at RL17.53 is consistent with Council's requirement (exhibit 4, condition 29) that all habitable rooms fronting Wetherill Street be a minimum of 500mm above the 1:100 ARI flood level identified by the Council's Flood Study as 17.03 AHD. The floor to floor dimensions of the proposal are 3.2m for the ground floor and 3m for the three levels above ground level, which is reasonable. In finding that the overall height of the proposal, which is 730mm above the maximum height limit for the site, is broadly acceptable, I have given some consideration to the fact that Council's minimum floor height for the ground floor is 1.53m higher than the lowest ground level on the site, resulting in a breach of the height of buildings development standard for a four storey building. Without the requirement for a minimum ground floor level determined by the Flood Study, the proposal could have comfortably accommodated four storeys within the maximum height limit of 13m. 3. I am not satisfied, however, that the proposal satisfies all the objectives of the height of buildings development standard, as it does not achieve a high quality built form or provide a transition in built form and land use intensity between different areas. The fourth level terraces are positioned immediately adjacent to the Liverpool Road boundary, with only a small setback of the roof over. The proposal presents as a four storey development with a nil setback to Liverpool Road for the full height of the four storeys. In my view, any fourth storey should be further setback on all elevations and recessive to the three storey bulk of the building below, in order to minimise the perception of the bulk and scale of the development and to provide an appropriate transition to the R3 Medium Density Residential zone to the west and the R2 Low Density Residential zone to the south of the site. 4. I accept the agreement of the planning experts that the reduction in scale of the proposal to the rear of the site is appropriate. Setback to Liverpool Road 1. I accept Mr North's evidence that the proposal should be setback from the Liverpool Road boundary. I am not convinced that a 6m setback is necessary, but a landscaped setback would make the proposal consistent with the local character of residential flat buildings and dwellings to the west of the site. I do not accept that the landscaped strip shown on the ground floor plan along the Liverpool Road boundary, with the development overhanging above and extending right to the boundary, provides a satisfactory visual buffer between the busy road and the residential apartments and their private open space on the Ground Floor. 2. Had the proposal been for a mixed use development with commercial or retail premises on the ground floor fronting Liverpool Road, the nil setback to Liverpool Road at the Ground Floor would have been consistent with the commercial development fronting Liverpool Road near the Frederick Street/Milton Street intersection and consistent with the B2 Mixed Use zone of the site. The 6m setback for the Caltex service station site and the site shown in the IDAP map 2 (extract at par 29) is at cross purposes with the B4 Mixed Use zone. The sites to the east of the Caltex service station site, up to Milton Street, have a nil road setback in the IDAP map 2, yet they are also within the B4 Mixed Use zone. A 6m setback from Liverpool Road with landscaping is unlikely to provide a successful commercial outcome for a mixed use development with commercial or retail premises on the ground floor. However, this is not relevant to this matter as the proposal does not include mixed uses and is for a residential flat building only. 3. The proposed nil setback of the residential apartments fronting Liverpool Road fails to satisfy cl 101 of the Infrastructure SEPP, as the proposal does not incorporate measures to ameliorate traffic noise or vehicle emissions arising from Liverpool Road and Liverpool Road is the only orientation for 7 of the apartments within the proposal. The proposal locates bedrooms in apartments 106, 107, 205 and 206 directly adjacent to the Liverpool Road boundary with their only window on the northern façade, orientated to Liverpool Road. Internal amenity 1. The proposal has not managed to successfully resolve the site circulation, with the ramp to the basement level in the centre of the building on Wetherill Street and the pedestrian entry at the eastern end of the site from Liverpool Road, which fragments the layout into three components at the ground floor level, isolating the entries to GO1, G02 and G07. The lack of a coherent circulation diagram for the proposal has resulted in an ad-hoc, poorly resolved and inefficient layout, including individual sets of stairs from the basement to G01 and G02; compromised entry to G07 behind the lift well and through the communal open space and the wobbly southern wall of G03, which creates awkwardly shaped rooms in that apartment. 2. The proposal has an inferior level of internal amenity. Some issues were addressed during the many iterations of amended plans and I raised a number of the amenity issues as well as pointing out drafting errors in the exhibit A plans during the hearing, most of which were addressed by the exhibit F plans, however the difficulty in constantly amending a proposal in response to a poor layout is that the proposal ends up with other flow-on issues and invariably, tinkering around the edges cannot address the underlying fundamental issue of poorly resolved site circulation. 3. Issues with the internal amenity of apartments with reference to the 'better design practice' and 'rules of thumb' of the RFDC, include: * the layout of G05 is inefficient with a hallway to a cupboard at the entry and behind the kitchen and an awkward furniture layout with the dining table shown in the centre of a circulation path; * the back wall of the kitchens in G04, G05, G06, 105, 106, 202, 203, 204 and 205 are between 9 and 12m from a natural light source, being the façade of the building; * apartments 103 and 202 have an access hallway from the doorway to the main bedroom nearly 7m long and yet the living room is only 3.4m wide for a 1 bedroom apartment; * a number of the apartments have an entry directly into a living room with no transitional space; * a number of apartments have kitchens located in part of the main circulation space, such as hallway or entry space; * many of the apartments are single aspect apartments and are of a greater depth than 8m; * many of the apartments, including 2 bedroom apartments, have a living room that is 3m or 3.5m wide, which has to also accommodate a circulation path to the external terrace. 1. The pedestrian entry to the proposal from Liverpool Road is a doorway onto the street at the end of a 12m long ramp in a narrow corridor. There is nothing on the Liverpool Road elevation that denotes or celebrates the entry door to the development vertically; it is simply a single door onto the street with an apartment over. It would be almost impossible for a visitor to read the building and locate the entry. 2. I am not satisfied that the proposal meets the RFDC Part 3 objectives for apartment layout, to ensure the spatial arrangement of apartments is functional and well organised and to ensure that apartment layout provide high standards of residential amenity. The internal amenity of the proposal is compromised and fails to satisfy Principle 7: Amenity of SEPP 65. Conclusion 1. The overall height of the proposal and the number of storeys is appropriate to the conditions of the site and its context and the proposal is broadly consistent with the likely future character of the local area, however I am not satisfied that the proposal achieves the objectives of the height of buildings development standard, as it presents as a four storey development with a nil setback to Liverpool Road for the full height of the four storeys. In my view, any fourth storey should be further setback on all elevations and recessive to the three storey bulk of the building below, in order to minimise the perception of the bulk and scale of the development and to provide an appropriate transition to the R3 Medium Density Residential zone to the west and the R2 Low Density Residential zone to the south of the site. 2. The proposed nil setback to Liverpool Road fails to satisfy cl 101 of the Infrastructure SEPP, as the proposal does not incorporate sufficient measures to ameliorate traffic noise or vehicle emissions arising from Liverpool Road. 3. I am not satisfied that the proposal meets Principle 7: Amenity of SEPP 65 and the RFDC Part 3 objectives for apartment layout, to ensure the spatial arrangement of apartments is functional and well organised and to ensure that apartment layout provide high standards of residential amenity. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 2014.167.1 for the demolition of existing structures and construction of a four storey residential flat building with basement parking at 412-416 Liverpool Road, Croydon, is refused. 3. The exhibits, other than exhibits 1, 8 and F, are returned. ­­­­­­____________ Susan O'Neill 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 April 2015