Land and Environment Court New South Wales Medium Neutral Citation: Shrik Petersham Pty Ltd v Inner West Council [2016] NSWLEC 1337 Hearing dates: 16 May 2016 Date of orders: 16 August 2016 Decision date: 16 August 2016 Jurisdiction: Class 1 Before: Smithson C Decision: 1. The appeal is upheld. 2. DA201500524 for the demolition of existing buildings and construction of a residential flat building at 27 Gordon Street, Petersham is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits A and 1, are returned. Catchwords: DEVELOPMENT APPLICATION – site amalgamation; site isolation; compliance with DCP Masterplan; waste collection; car stacker; access and parking; resident objections Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011 Cases Cited: Melissa Grech v Auburn Council [2004] NSWLEC40 Cornerstone Property Group v Warringah Council [2004] NSWLEC189 Karavellas v Sutherland Shire Council [2004] NSWLEC251 Category: Principal judgment Parties: Shrik Petersham Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: Ms S Duggan (A) Solicitors Mr A Knox, Pikes and Verekers Lawyers (Applicant) Mr J Strati, Inner West Council (Respondent) File Number(s): 2016/166794 Judgment 1. COMMISSIONER: This is an appeal under s 97 (1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of a development application by Marrickville Council, now Inner West Council (the Council), for the demolition of existing buildings and construction of a residential flat building at 27 Gordon Street, Petersham (the appeal site). 2. The key issues associated with the appeal relate to the potential isolation of an adjoining site at 29 Gordon Street and the fact that the proposed development is not on an amalgamated site and therefore does not conform with the form of development envisaged in the DCP Masterplan applying to the site. Background to application 1. Development Application No.201500524 (the DA) was submitted to Council on 18 September 2015 and was not determined by the Council. The DA proposed a 6 storey residential flat building containing 13 units with a basement containing waste storage facilities and a car stacker for 12 car parking spaces. 2. On 9 November 2015, the Applicant lodged a Class 1 appeal to the Land and Environment Court against the deemed refusal of the DA. 3. A section 34 conciliation conference was held on 2 February 2016. Various amendments to the plans were proposed as part of that conciliation process but did not result in a conciliated outcome. The conciliation process was therefore terminated. The appeal site and locality 1. The appeal site is located on the eastern side of Gordon Street, between Sadlier Crescent and New Canterbury Road, Petersham. The site has a dogleg shape with a frontage to Gordon Street of 8.23m and a total area of 427m². Access to Gordon Lane is provided at the rear northern portion of the site. 2. Existing improvements on the site comprise a single storey residential building and a detached residential building. The buildings appear to be used as residential flats. 3. The adjoining property to the south at 29 Gordon Street (the adjoining site) contains a free-standing single storey dwelling which has no rear access to Gordon Lane. The next adjacent property at 31 Gordon Street is zoned for business purposes, has rear access to Balanaming Lane (which intersects with Gordon Lane) and accommodates a commercial building. Based on information provided to the Court, the properties at 29 and 31 Gordon Street are in the same ownership. 4. The adjoining properties to the north at 23 and 25 Gordon Street contain a pair of semi­detached dwellings. These properties have rear lane access from Gordon Lane. 5. A brick electricity substation adjoins the rear of the site on the corner of Gordon and Balanaming Lanes. 6. On the opposite side of Gordon Street are free­standing dwellings and a commercial building. Relevant Statutory Controls 1. The following statutory controls of specific relevance to the appeal apply: 1. State Environmental Planning Policy No.65 (Design Quality of Residential Flat Development) (SEPP 65). 2. Marrickville Local Environmental Plan 2011 (the LEP). The relevant clauses are: 1. Clause 2.3 (Zone Objectives and Land Use Table); 2. Clause 4.3 (Height); and 3. Clause 4.4 (Floor Space Ratio). 1. Marrickville Development Control Plan 2011 (the DCP). The relevant parts in terms of the appeal are: i. Part 2.1 (Urban Design); ii. Part 2.10 (Parking); vii. Part 2.21 (Site Facilities and Waste Management); ix. Part 4.2 (Multi Dwelling Housing and Residential Flat Buildings); and x. Part 9 (Strategic Context). 1. The site is zoned R4 - High Density Residential under the LEP and the proposed development is permissible with development consent. 2. The development complies with the maximum LEP height of 20m and is less than the permissible FSR of the LEP which is 2.1:1. The site is not identified under the LEP as an Item of Environmental Heritage nor is it in a Heritage Conservation Area. Resident submissions 1. The Development Application was notified to adjoining properties in September 2015. There was one letter of support and 16 letters of objections with the objectors raising the following concerns: * Six storeys is too high for a narrow block * Excessive bulk and scale * Does not comply with the Masterplan guidelines for number of storeys and amalgamation * Extra traffic movements within the precinct * Increased parking congestion * Loss of view from 24 Gordon Street * Shading of 24 Gordon Street * Will detract from the character of Petersham * Impact on amenity of houses on the western side of Gordon Street * The narrow lanes will not cope with the cumulative demand from this and other developments * Overlooking of Sadlier Crescent properties. 1. The letter of support noted that the Council had gone through an extensive consultative planning process to determine where growth should occur. The submission queried why people would question denser development occurring around Petersham station and shops noting that the future character of the eastern side of Gordon Street will be 6 storey development. 2. At the conciliation conference, the Court and the parties heard from resident objectors of four properties in the vicinity of the appeal site; being two residents of 24 Gordon Street which is directly opposite the site, a resident from 14 Gordon Street and the residents of 21 Sadlier Crescent which is diagonally opposite the rear of the site across Gordon Lane. 3. The residents of 24 Gordon Street raised concerns with overshadowing of their own and other properties, including querying the accuracy of the overshadowing assessment, the adverse impact on the character and residents of the area, and privacy and view impacts. The resident of 14 Gordon Street also raised concerns with the adverse impact on the neighbourhood particularly in terms of the height and appearance given the visual height and prominence of the site and the impact on Gordon Lane. She also raised a concern at the heritage impacts for the kerbing in the lane and for a historic part of Sydney. 4. The residents of 21 Sadlier Crescent raised more specific potential amenity impacts on their property including on their privacy from overlooking, on their outlook, and on their access from Gordon Lane given the poor state and narrowness of the lane. This included a concern with the traffic impacts during construction. They were also concerned with the noise impacts from the operation of the garage door and stacker. A visit to the rear of their property was undertaken. 5. A revised proposal developed as part of the conciliation process was re-notified and 5 objections were received including from 3 of the residents who attended the conciliation conference. The residents raised many of the same concerns they had raised with the original DA and indicated that the revised proposal had not addressed their concerns. Furthermore, new concerns were raised with the revised proposal in terms of the new bin area and access to driveways during construction. 6. No submissions of support or objection were lodged by the owner of 29-31 Gordon Street (the adjoining combined site). Initial Issues in Contention 1. The original contentions for refusal of the DA given by the Council included: insufficient information as to the possible loss of affordable residential accommodation and the proposed turning circles for the parking area; the proposed use of a car stacker; the dwelling mix; and unsatisfactory internal amenity for the proposed units arising from either overdevelopment of the site or poor site planning. 2. The Council raised a particular concern that, whilst the design had a built form echoing the built form outcome shown in the precinct Masterplan contained in Part 9 of the DCP (the Masterplan), the Masterplan form relied upon the amalgamation of the appeal site with the adjoining site (29 Gordon Road) which was not proposed in the application. In the Council's view, without the amalgamation, it was unrealistic to expect that the maximum permissible FSR or envisaged built form for the appeal site could be achieved. 3. As a consequence of the conciliation process undertaken by the Court, a number of issues of concern raised by the Council were addressed either by the provision of additional information or by modifications to the proposal. 4. The Council contentions which remained to be addressed following conciliated amendments were as follows: 1. Failure to amalgamate with 29 Gordon Street – ie failure to demonstrate that amalgamation of the adjoining site with the appeal site is not feasible. 2. Isolation of 29 Gordon Street – even if it was found that amalgamation with 29 Gordon Street is not feasible, the proposed development would render 29 Gordon Street incapable of being reasonably developed in accordance with the applicable planning controls. 3. Car Parking and Access concerns – concern with the car park stacker specification; lack of a swept path analyses; and maneuverability compliance with AS2890.1-2004. 4. Waste collection point - did not meet the requirements of the DCP. The amended proposal 1. Prior to the appeal commencing, conferral between the experts continued to be undertaken to address the remaining concerns of the Council. As a result, an amended proposal before the Court at the commencement of the hearing reflected further modifications (the amended proposal). Additional information was also provided. 2. The amended proposal, which the Court granted leave to rely upon, comprises the following: 1. A 6 storey residential flat building, with a nil setback to the side boundaries for the front portion of the building, a 2m setback to Gordon Lane for the first level increased to 3.085m for the upper four levels, and a minimum setback to Gordon Street of 3m for lower levels increasing to 6m for the top storey; 2. Twelve apartments comprising 9 non-adaptable and 3 adaptable units; 3. Twelve off street car parking spaces comprising 8 standard parking spaces and 4 accessible parking spaces. Ten of these spaces will be provided in two double platform car stacker units accessed off Gordon Lane each of 3 levels and custom modified to provide a double useable platform width of 5.4m. The top level of each stacker contains one accessible parking space while the two lower levels each contain 4 standard parking spaces. The balance two accessible parking spaces will be provided at grade also accessed off Gordon Lane; 4. A waste storage facility at ground level at the rear of the units adjoining Gordon Lane and a bin holding area for collection at the rear of the site accessed off Gordon Lane; and 5. Communal open space at the first level situated at the rear of the proposed building as well as associated landscaping works and new boundary fencing. 1. Based on the amended proposal, both parties' expert planners considered the proposed development to be worthy of approval subject to conditions and pending the resolution of the site amalgamation/isolation issue. 2. In terms of the Council's concerns with access and parking, the engineering experts agreed that turning path diagrams using the required template from AS2890.1 demonstrated satisfactory maneuverability and access to all of the parking spaces, and the Council had been provided with a manufacturer's specification for the car stacker. These contentions were therefore no longer pressed by the Council. 3. In terms of waste management, the Council's initial concerns were that the proposed bin collection area would be too far from the original (basement) location proposed for bin storage and that Gordon Lane would be too narrow for garbage trucks. 4. In the amended proposal, the bin storage area was relocated from the basement to the rear of the building at ground level with the bin holding area at the rear of the site. This will enable collection from either Gordon Lane or the wider Balanaming Lane if Gordon Lane is too narrow or has poor maneuverability for garbage trucks. 5. Accordingly, the waste management contention was also no longer pressed by the Council. 6. This left the only substantive contentions to be resolved being the related issues of amalgamation with, vis a vis isolation of, the adjoining site at 29 Gordon Street and the consequent built form which would arise on both the appeal site (27 Gordon Street) and the adjoining site (29 Gordon Street). 7. Issues raised by objectors also needed to be considered. Site amalgamation/isolation Planning Context 1. Part 9 of the DCP contains planning controls for certain precincts within the former Marrickville LGA. The appeal site is located in Petersham South – Precinct 6 (the Petersham South Precinct). The strategic built form controls are contained within Part 9.6 of the DCP. Section 9.6.2 deals specifically with the desired future character of the Petersham South Precinct setting out 11 objectives to achieve that character. 2. The relevant objectives in section 9.6.2 are as follows: ● To facilitate urban renewal in appropriate locations (predominantly on masterplan sites), allowing substantial change to the streetscape character while resulting in a high quality public domain. ● To allow and encourage a greater scale of development and increased residential density on masterplan sites that provides new dwellings near local shops, services and public transport, to meet the market demand, create the opportunity for high access housing choice and support sustainable living. ● To ensure orderly development on masterplan sites in accordance with the principles of the masterplan vision, including allotment amalgamations where required, that are not detrimental to achieving the overall masterplan structure and achieve an efficient and high quality built outcome. ● To support excellence in contemporary design. ● To ensure that the design of higher density development demonstrates good urban design and environmental sustainability and provides suitable amenity for occupants of those developments. ● To ensure that the design of higher density development provides adequate amenity for the intended occupants of the building and protects the residential amenity of adjoining and surrounding properties. ● To ensure that the provision and design of any parking and access for vehicles is appropriate for the location, efficient, minimises impact to streetscape appearance and maintains pedestrian safety and amenity. 1. Development provisions for parts of the South Petersham Precinct are further detailed in specific 'Masterplan Areas'. The appeal site is located in Masterplan Area 6.5 (MA 6.5) as delineated on Figure 6.5a of the DCP. 2. Section 9.6.5.5 of the DCP outlines the specific controls for MA 6.5. It includes Figure 6.5b 'Plan Diagram' which contains a number of controls for the Masterplan Area relevantly including: * An amalgamation pattern showing the appeal site amalgamated with the adjoining site to the south (29 Gordon Street) but not with 29 and 31 Gordon Street; * A maximum height limit of 4 storeys at the Gordon Street frontage with a fifth storey permitted setback 6m from Gordon Street; * A minimum setback to Gordon Street and to Gordon Lane of 3m; and * Car access to the site from Gordon Lane. 1. Section 9.6.5.5 also contains Figure 6.5c 'Section Diagrams' comprising cross sections of upper floor setbacks for sites fronting Sadlier Crescent and Gordon Street. 2. Controls C45 and C46 for MA6.5 relate specifically to amalgamation stating: Site Amalgamation C45 The redevelopment of the land shaded in Figure (6.5a) must wherever possible conform to the amalgamation pattern in the control diagram in Figure (6.5b). C46 Amalgamation of allotments must not result in in any adjoining sites being isolated to the extent that it is not possible for development to occur in accordance with the urban design vision for the Masterplan Area. 1. The remaining development or design controls for MA6.5 are as follows: Building Height C47 The height of proposed buildings on the land shaded in Figure (6.5a) must conform to the control diagram(s) in Figures (6.5b) and (6.5c). The height is expressed in number of storeys. Boundary setbacks C48 The boundary setbacks of proposed buildings on the land shaded in Figure (6.5a) must conform to the control diagram(s) in Figures (6.5b) and (6.5c). The setbacks are expressed in metres. Sustainable envelopes and occupant amenity C49 The siting, orientation, depth and separation of proposed buildings on the land shaded in Figure (6.5a) must conform to the control diagram(s) in Figure (6.5b) and (6.5c). The dimensions are expressed in metres. Upper floor and roof setbacks C50 The upper dwelling floor level(s) and roof (including any open pergolas) of proposed buildings on the land shaded in Figure (6.5a) must be set back from the external wall of the floor level below in accordance with the control diagram(s) in Figures (6.5b) and (6.5c). The setbacks are expressed in metres. Articulation zones C51 The envelope of buildings on the land shaded in Figure (6.5a), where indicated as a street/shallow articulation zone within the control diagram(s) in Figures (6.5b) and (6.5c), must predominantly express a street fronting building edge, with shallow articulations to the building edge adding visual richness. C52 The envelope of buildings on the land shaded in Figure (6.5a), where indicated as courtyard/deep articulation zone within the control diagram(s) in Figures (6.5b) and (6.5c), may include deep articulations to the building form to break up the massing. Domain interface and structure C52 The redevelopment of the land shaded in Figure (6.5a) must conform to the control diagram in Figure (6.5b) in regards to: i. The location of active land uses and frontages at ground level; ii. The location of vehicular entries; iii. The location of publicly accessible and dedicated pedestrian links; and iv. The location and extent of public domain infrastructure. NB If there is any inconsistency between the plan diagram and section diagram(s) the plan diagram will prevail to the extent of the inconsistency. 1. The parties agreed that the intent of the DCP is that the appeal site and the adjoining property to the south (29 Gordon Street) be fully amalgamated and developed as reflected in the amalgamation pattern in Figure 6.5b. 2. The Council argued that this amalgamation was necessary for an appropriate urban form and so that 29 Gordon Street would not be left as an isolated site. The Council did not argue that the appeal site should be amalgamated with 25 Gordon Street as the requirement of Figure 6.5b is that the property be amalgamated with the adjoining property to the south not to the north. 3. The maximum height for the site shown in Figure 6.5c is 4-5 storeys notwithstanding the LEP maximum height limit of 20m would allow 6 storeys. The Council did not press that the development should be confined to 5 storeys or that the fifth storey should be setback 6m from Gordon Street but did argue for this 6m setback of the sixth storey, which the development achieves. 4. The Council did not press any issues in terms of the compliance of the amended proposal with any of the Masterplan provisions other than C45 and C46 (ie the amalgamation provisions). Relevant Court principles on site amalgamation and isolation 1. The applicant referenced a number of Court decisions which established amalgamation and site isolation principles, namely Melissa Grech v Auburn Council [2004] NSWLEC40, Cornerstone Property Group v Warringah Council [2004] NSWLEC189 and Karavellas v Sutherland Shire Council [2004] NSWLEC251. 2. In Grech, an LEP clause precluded consent to a development if it would prevent surrounding lots from being developed in accordance with the DCP. Irrespective of the clause, Commissioner Brown concluded that there was a general planning responsibility to ensure that land is developed in an orderly manner. Further that, although the requirements of the DCP were not in themselves a reason for refusal, any departures from controls had to be measured against the objectives of the requirements and the form of development envisaged by the controls. 3. In terms of Grech, Commissioner Brown found that the Court was unable to determine if a reasonable offer had been made to the owner of an isolated lot. He considered it incumbent on the Court to ensure that all reasonable attempts had been made to ensure the two sites cannot be developed together. In that instance there was no evidence of a written response from the owner of the isolated site to offers made and no independent valuation of the isolated property. 4. Commissioner Brown indicated that it was not necessary to delve too deeply into the negotiations but, inter alia, sufficient reliable information had to be before the Court for a conclusion that reasonable attempts had been made to acquire the isolated site. He considered that three main principles should apply relating to isolation of land through redevelopment: Firstly, where a property will be isolated by a proposed development and that property cannot satisfy the minimum lot requirements then negotiations between the owners of the properties should commence at an early stage and prior to the lodgement of the development application. Secondly, and where no satisfactory result is achieved from the negotiations, the development application should include details of the negotiations between the owners of the properties. These details should include offers to the owner of the isolated property. A reasonable offer, for the purposes of determining the development application and addressing the planning implications of an isolated lot, is to be based on at least one recent independent valuation and may include other reasonable expenses likely to be incurred by the owner of the isolated property in the sale of the property. Thirdly, the level of negotiation and any offers made for the isolated site are matters that can be given weight in the consideration of the development application. The amount of weight will depend on the level of negotiation, whether any offers are deemed reasonable or unreasonable, any relevant planning requirements and the provisions of s 79C of the Environmental Planning and Assessment Act 1979. 1. In Cornerstone, Commissioner Tuor expanded on the principles put forward in Grech considering that there were two key questions to be answered when dealing with amalgamation of sites or when a site could be isolated through redevelopment: Firstly, is amalgamation of the sites feasible? Secondly, can orderly and economic use and development of the separate sites be achieved if amalgamation is not feasible? That is, could reasonable and equitable development be undertaken on both sites with appropriate urban forms achieved and acceptable levels of amenity between both developments. 1. In answering these questions, the Commissioner concluded: The key principle is whether both sites can achieve a development that is consistent with the planning controls. If variations to the planning controls would be required, such as non compliance with a minimum allotment size, will both sites be able to achieve a development of appropriate urban form and with acceptable level of amenity? To assist in this assessment, an envelope for the isolated site may be prepared which indicates height, setbacks, resultant site coverage (both building and basement). This should be schematic but of sufficient detail to understand the relationship between the subject application and the isolated site and the likely impacts the developments will have on each other, particularly solar access and privacy impacts for residential development and the traffic impacts of separate driveways if the development is on a main road. The subject application may need to be amended, such as by a further setback than the minimum in the planning controls, or the development potential of both sites reduced to enable reasonable development of the isolated site to occur while maintaining the amenity of both developments. 1. As Commissioner Tuor further stated, it is not for the Court to determine an envelope for an isolated site, merely to be satisfied that that the development application sought does not prejudice reasonable development of the isolated site. 2. Reference was also made to Karavellas v Sutherland Shire Council [2004] NSWLEC251 where Commissioner Tuor dealt with the extent of negotiations required with adjoining owners before it could be determined that amalgamation was not 'reasonably feasible'. 3. I therefore deal firstly with the site amalgamation issue before considering if, absent this amalgamation, the development should be approved in view of potential site isolation and design implications. Site amalgamation 1. The Council argued that the evidence provided with the DA failed to establish that amalgamation of the site with the adjoining site at 29 Gordon Street is not available. Specifically, that the information submitted with the DA did not evidence any offer having been made by the applicant to amalgamate the site with this adjoining site as the DCP required. The Council did acknowledge that offers were made on behalf of the applicant to purchase the adjoining site but that these were without disclosure of the applicant's identity and its interest in the site. Therefore, the owner of the adjoining site could not have known that there was an offer to amalgamate. 2. During the hearing, Ms Duggan, Counsel, summarised the negotiations to purchase the adjoining site as follows: the applicant had offered the adjoining property owner(s) $7m then $7.9m for the combined adjoining site at 29-31 Gordon Street. This combined site had a value of $4.7m. 3. The history of negotiations between the applicant and the owner of 29 and 31 Gordon Streets was canvassed with the expert planners though evidence given by Mr David Furlong, town planner for the applicant and Mr Bruce Threlfo, town planner for the Council. 4. Mr Furlong indicated that discussions and meetings had occurred between the applicant and the adjoining owner with no successful outcome, prior to lodging the DA. 5. A report (the Amalgamation Report) had been lodged with the DA in September 2015 outlining the DCP requirements and detailing the amalgamation negotiations that had been undertaken prior to lodgment. 6. The Amalgamation Report states that there is common ownership of 29-31 Gordon Street and proposes a new amalgamation pattern within MA6.5 which sees these two properties developed together, the appeal site developed in isolation and No's 21, 23 and 25 Gordon Street still being capable of development in accordance with the Masterplan and not precluded from amalgamation with each other. 7. The Amalgamation Report also advised that the applicant had taken the initiative of ordering independent valuations of 25 and 29 Gordon Street. 8. In terms of 25 Gordon Street, an offer was made at 20% above the valuation value but the owner did not wish to sell. In any event the DCP does not require the appeal site to be amalgamated with 25 Gordon Street. 9. In terms of 29-31 Gordon Street, the Amalgamation Report contains: 1. A letter of intent to purchase dated July 27, 2015 from the applicant to Petersham Property Group offering $7m for 29-31 Gordon Street and advising that an independent valuation 'for the property' resulted in a value circa $3.65m. 2. An explanation of how the value of $3.65m had been derived: namely that the independent valuation for 29 Gordon Street of $1.2m resulted in a per square metre value for that property of $3,647.42 and this per square metre value had been applied to the area of 31 Gordon Street to achieve a combined value in the order of $3.7m. 3. A letter of intent to purchase dated August 19, 2015 from and to the same parties for 29-31 Gordon Street offering $7.9m as a final and best offer to purchase. 4. An email dated August 19, 2015 from a representative of Petersham Property Group to Mr George Nassr referring to a recent meeting between the two and advising of the $7.9m offer. 5. An email response the same day from George Nassr thanking the sender for his time and offer but advising 'the building is not for sale'. 6. Valuations dated August 24, 2015 for 25 Gordon Street at $1m and for 29 Gordon Street at $1.2m. 1. Further documentation provided to the Court by the applicant at the hearing comprised: 1. Copies of Title searches showing 29 Gordon Street to be in the ownership of Ibrahim Nasr, Nasr Nasr and George Nasr as tenants in common in equal shares, and 31 Gordon Street to be in the ownership of Nasr Nasr and George Nasr as tenants in common in equal shares. 2. A letter from lawyers sent on behalf of the applicant to George Nazr, Nazr Nazr and Ibrahim Nazr at 29 Gordon Street dated April 16, 2016. The letter refers to the two offers to George Nazr through his real estate agents in July and August 2015 and the rejection of both offers. It also refers to a meeting between the applicant and George Nazr in March 2016 regarding the offers and their respective proposed developments. It outlines the applicant's intent to develop 27 Gordon Street and the basis of the offers being to amalgamate the site or sites to develop them together. The offer of $7.9m is again made with 7 days given to accept. Alternatively, $1.4m is offered for only 29 Gordon Street with the $1.2m valuation for No. 29 from August 2015 attached. 3. An email dated April 20, 2016 from the applicant to George Nasr advising of his purchase of 27 Gordon Street, referring to a meeting with him and his architect on March 7, 2016, and again attaching the letter offer to buy 29 Gordon Street. This email was forwarded by Mr Nasr on the same date to a Ms Ronny Naseri of Terranasa (NSW) Pty Ltd. Ms Naseri then emails the applicant's lawyers on the same date advising that: at no time did the applicant make an offer to Mr George Nasr directly; that the agent presenting the offer didn't make it clear it was from the applicant; that any offer should be above $9m; that an offer came back of $7m that was rejected by Mr Nasr and no other offers had been made; that, at the meeting with Mr Nasr, his architect and the applicant no mention of numbers or offers were made with the sole intent of the meeting being 'to discuss the DA proposals and go through the plans for each property'; rejecting the latest offer; and querying how 29 Gordon Street could be valued at only $1.2m when the applicant had just paid $3m for 27 Gordon Street? The email concludes that any 'fair dinkum' offer for both properties needs to be at $13m otherwise 'stop sending us pathetic offers…' 4. A later email the same day from Ms Naseri 'for clarity' advising that only one offer was made and it was made verbally through the agent and never formally presented to Mr Nasr and therefore no offers were formally rejected by Mr Nasr. Furthermore, the valuation presented was dated August 2015 and is therefore not current. 5. A copy of a letter from Marrickville Council's to Mr I Nasr and Mr N Nasr dated August 3, 2015 referencing a pre DA Advisory Panel meeting for 29-31 Gordon Street. The letter refers to a proposal to develop 29-31 Gordon Street for a mixed use development comprising commercial tenancies, boarding rooms and 24 dwellings with basement parking. Advice is provided 'to assist in the preparation of a Development Application'. Plans by Berreca Architects on which the advice is based dated March 2015 are attached. The letter notes that RFB's are not permitted on No. 31 (and are therefore confined to the No. 29 portion of the site) and 'a significant redesign of the proposal is required to address this issue'. Relevantly it notes that the proposal does not respond to the amalgamation pattern in the DCP and 'efforts should be made to attempt to amalgamate 29 Gordon Street with the adjoining allotment at 27 Gordon Street'. Otherwise it may be difficult for No. 27 to develop and it would isolate No. 27. If the sites can not be amalgamated, the Nasrs are advised to prepare a detailed analysis dealing with site amalgamation and isolation and a schematic development proposal for No. 27 showing how No. 27 could be developed in isolation which achieves the outcomes envisaged by the Masterplan. The letter includes several pages of design advice provided by, and the report of, the Council's Architectural Excellence Panel (AEP) and comments from the Council's engineers. In summary, the proposal was not supported in its current form but the Council's assessment was of preliminary plans and the advice was provided to assist a redesign process. 1. In April, 2016 a valuation was undertaken for the applicant for 31 Gordon Street which valued that property in isolation at $3.5m. 2. In evidence, Mr Throlfo agreed that he had seen the offers to the adjoining owner(s) and read the Valuation Reports and accepted the offers exceeded the valuations. However, he noted that the offers did not raise the option of a joint venture proposal nor did the applicant offer to negotiate the sale of their property to accommodate an amalgamated development. 3. Mr Threlfo advised that the Court's planning principle regarding amalgamation of lots requires "negotiations" to take place between property owners. In his view, the letters of offer and email responses weren't conclusive as to whether this principle had been satisfied. He queried if offers made just prior to the hearing were reasonable so late in the piece not allowing for negotiations and based on a valuation from August 2015. The valuations are only valid at the time of preparation and the owner(s) of the adjoining site also point out that they are out of date (I note however, that only the valuation for No. 29 is from August 2015. It was not clear if Mr Nasr had seen the April 2016 valuation for No. 31). 4. In evidence, Mr Threlfo would not comment on the reasonableness of the offers but did accept that there is no DCP requirement or Court principle requiring an applicant to come to a joint venture arrangement with neighbours. He advised that he had not spoken to the owner(s) of 29-31 Gordon Street. 5. Mr Throlfo also agreed that there was nothing suggested in the Council's pre DA advice letter to the owner(s) of 29-31 Gordon Street that it couldn't reasonably be developed in isolation of 27 Gordon Street. Until his conferral during conciliation with Mr Furlong, Mr Throlfo was unaware that the owner(s) of 29-31 Gordon Street were preparing their own DA. 6. Mr Furlong advised the Court that the applicant had advised him that the adjoining owners were preparing to lodge their own DA and had shown him the initial plans. 7. In closing submissions, the applicant re-iterated that the DA included documentation outlining attempts to amalgamate the site with the adjoining site. An independent valuation for 29 Gordon Street was provided current at the time of the DA. Two offers were to the owner(s) of the adjoining site which were above market price. Offers were initially made for both 29-31 Gordon Street given they were in the same ownership even though the DCP does not require the inclusion of No. 31. More recently, in April, 2016, offers were again made for either No. 29 alone or No's 29-31 and a valuation was done for No. 31. The adjoining owner(s) had rejected all offers. 8. The Council argued that the Court cannot accept the applicant's planner's verbal advice in terms of the progress of a DA for 29-31 Gordon Street in the absence of documented information. 9. I therefore directed both parties to provide any documents to the Court subsequent to the hearing with regard to this specific issue. 10. An affidavit was filed with the Court by the applicant on May 17, 2016. It indicated that a meeting had been organised by the applicant and held on March 7, 2016 with, amongst others, Mr George Nasr, the co-owner of the adjoining site and his architect to discuss the redevelopment of their respective sites at 27 and 29-31 Gordon Street. It also indicated that the architect for the owner(s) of the adjoining site had prepared amended plans in response to a pre DA meeting with the Council. Finally that, at this meeting, Mr Nasr indicated he intended to lodge a DA based on the amended plans for 29-31 Gordon Street once the Court proceedings relating to 27 Gordon Street have been resolved. 11. I do not rely on this affidavit given it was filed after the hearing. However, I note that the dates and events align with the evidence given. 12. In evidence, the applicant also pointed out to the Court that if a DA was approved for 29-31 Gordon Street, the Council would have to accept that 27 Gordon Street could be developed on its own and the appeal DA confirmed this. Further, the Council has been aware since the DA for the appeal site was lodged that negotiations with the adjoining owner(s) had been undertaken including the fact that a valuation had been prepared for 29 Gordon Street in August 2015. 13. Ms Duggan queried how somehow between August 2015 and May 2016 there had been a doubling or tripling of the value of 29 Gordon Street well above the market value and argued that the movement in the property market wouldn't be so great as to take the value of the adjoining combined site from $3m to $7m. Furthermore, the Council did not provide any evidence that the valuations or the value of the offers were unreasonable and the DCP doesn't require the 'offerer' to be disclosed or the basis for the offer. In her view, the evidence suggests the owner(s) of 29-31 Gordon Street must have known who was behind the offers and why. 14. Having regard to the information provided by the applicant, including emails from the owner(s) of the adjoining site at 29 Gordon Street, I am satisfied that the applicant did make reasonable attempts to purchase this adjoining site with the intent of amalgamation, at least subsequent to lodging the DA, and commenced negotiations to acquire the adjoining combined site prior to lodging the DA. 15. Furthermore the DCP does not contemplate that the owner(s) of 27 Gordon Street would also own 31 Gordon Street and would seek to develop this combined site in isolation of the appeal site. 16. 'The building is not for sale' email from Mr Nasr as the adjoining (co) owner is clearly indicative of his unwillingness to sell at the time the DA was being prepared for the appeal site. 17. An independent valuation was prepared for the adjoining site at the time the DA was being prepared for the appeal site and around the time the offer to purchase the adjoining combined site was made. The offer for this site appears well above the value of that site although I do note that a valuation was not done for 31 Gordon Street at the same time and I question the methodology of applying the per square metre value of No. 29 to No. 31 when No. 31 has a different zoning and contains a commercial building. I am also unclear why the offer was made for both 29-31 Gordon Street not just 29 Gordon Street which is the only site that is required to meet the DCP amalgamation requirements. I can only assume based on the evidence before me that this was because the applicant was aware that No.'s 29 and 31 were in the same ownership. 18. In any event, a subsequent offer was made for only 29 Gordon Street in April 2016. Accepting that an updated valuation for 29 Gordon Street had not been prepared, the offer at $7.9m for both properties was well in excess of the $4.85m combined value of No. 29 as at August 2015 and No. 31 as at April 2016. 19. On the evidence before the Court, I have formed the view that the owner(s) of the adjoining site were aware of who the offers were from. Had that owner(s) been interested in selling or concerned that their site would be isolated, the opportunity was provided for a counter offer to be made or negotiations entered into. Instead, I accept that the owner(s) of 29 Gordon Street intend to develop with their adjoining site to the south rather than with the appeal site to the north which they neither own nor appear to have expressed any interest to own. 20. Furthermore, no offer had been made to the applicant by the adjoining owner(s) even though they would be conversely isolated if a DA for 29-31 Gordon Street was lodged as had been mooted in a pre DA meeting with the Council. The Council, in their pre DA advice to the owner(s) of 29-31 Gordon Street, raised concerns in terms of the potential isolation of the appeal site and the DCP amalgamation requirements that equally apply to the adjoining site as they do to the appeal site. 21. In view of the history of events provided to me, I consider the offer to the owner(s) of the adjoining site to be at least reasonable. I also accept the applicant's arguments that the amalgamation benefits contemplated by the DCP must be considered against property rights of the applicant and the actions of the adjoining owners. As Ms Duggan argued, a next door neighbour can't unreasonably stop a development. Nor in this instance have they sought to do so. 22. Given that 29 Gordon Street is in the same ownership as the adjacent 31 Gordon Street, there is opportunity for the owner(s) of both properties to undertake an integrated development in which case neither of their properties is isolated. The DCP Masterplan is sufficiently conceptual in my view for boundaries between the sites affected to move providing no one site is isolated. This finding is discussed further when I consider the site isolation issue. 23. I therefore agree with the applicant's summary of the facts as they were before the Court on the amalgamation issue namely: No.'s 29 and 31 Gordon Street are in single (or at least related) ownership; the owner(s) of these properties have engaged architects to prepare DA plans for the combined site; they have held pre DA meetings with the Council; and they have shown the applicant further plans to progress the DA. Furthermore, the Council has made no enquiries of its own in terms of the amalgamation negotiations. 24. The evidence shows negotiations were commenced early and prior to the DA being lodged and independent valuations were prepared by the applicant and, at least in terms of the isolated site at 29 Gordon Street, provided to the adjoining owner and the Council. More than one offer was made to purchase the adjoining combined site and at least one offer made to buy only the isolated site. These offers were above market value. Although there may be some dispute on the currency of the valuations, the offers were well above the valuations prepared and, for 29 Gordon Street, were valid at the time the DA was lodged. At least one meeting took place between the owners of 27 Gordon Street and 29-31 Gordon Street to talk about development options for their respective sites and the applicant attempted to negotiate the purchase of the adjoining site. Details of the early negotiations were included with the DA and of the later negotiations at the hearing. 25. Finally, 29 Gordon Street is not isolated whilst 31 Gordon Street remains undeveloped and both of these properties are in the same ownership. The owner(s) of these properties have raised no concern with the Council or in submissions against the proposed DA for 27 Gordon Street. No evidence was provided to the Court to show that they have attempted to acquire the appeal site to amalgamate with their site at 29 Gordon Street as the DCP requires. 26. For the above reasons, I conclude that it would not be reasonable to refuse the appeal on the basis that reasonable attempts have not been made by the applicant for the appeal site to be amalgamated with 29 Gordon Street. 27. If I am correct or not in that finding, the issue remains whether the failure to amalgamate 27 and 29 Gordon Street results in the isolation of 29 Gordon Street from a development potential perspective. Further, whether the resultant individual developments of 27 and 29 Gordon Street would be in accordance with the DCP Masterplan and, if not, whether a variation to that Masterplan is justified. 28. I now turn my attention to consideration of these issues. Site isolation and development implication 1. The Council was concerned that, even if it wasn't feasible to amalgamate the appeal site with 29 Gordon Street, it would leave 29 Gordon Street as an isolated residentially zoned site of 329.3m² in an R4 high density zone with no rear access and adjoined on its other boundary by a commercially zoned site being 31 Gordon Street. This was on the basis that, notwithstanding 29 and 31 Gordon Street may now be in the same or related ownership, this would not necessarily remain the case. No. 31 Gordon Street has an area of 685.8m² and rear access via Balanaming Lane. 2. The Amalgamation Report submitted with the DA argued that the development of the appeal site in its own right meets the Court's principles previously cited of not isolating adjoining sites or detrimentally impacting on their future development. This was on the basis that the proposed development and amalgamation pattern created sites capable of development within their own right following unsuccessful purchase of adjoining properties by the applicant for amalgamation. 3. In order to demonstrate that 29 Gordon Street could be feasibly developed on its own in isolation of both 27 and 31 Gordon Street, the applicant produced indicative sketches showing how a residential flat building (RFB) or a boarding house might be developed on 29 Gordon Street. The concept plan for the RFB comprised eight residential units with three maisonette 2 bedroom units facing Gordon Street and five 1 bedroom dwellings facing the rear. 4. Mr Threlfo considered that this indicative RFB design failed to provide the solar access required by the Apartment Design Guidelines (ADG) and the DCP and, even if adequate solar access to east facing units could be provided, achieving solar compliance for units on the western elevation would be an unreasonable constraint on the future redevelopment of 27 Gordon Street. It would require the eastern wall to be brought forward out of alignment with the eastern wall of the proposed development to achieve adequate solar access which is contrary to the Masterplan. Furthermore, the design did not make any provision for off street parking as required by the DCP which he considered unacceptable given the locality is characterised by a high demand for very limited on-street parking. Finally, the design would involve waste being stored in a location where it must be transported through the main lobby to be collected, which was undesirable. 5. Mr Threlfo also argued that the highest and best use of 29 Gordon Street, given its zoning, is an RFB so the boarding house analysis should not be determinative of whether 29 Gordon Street will be an isolated site. In any event, the car parking and waste issues identified for the RFB design would similarly apply to a boarding house. 6. In response, Mr Furlong reiterated that 29 and 31 Gordon Street were in the same ownership with plans prepared and a pre DA process entered into in relation to a single redevelopment over both of those sites. In this context, 29 Gordon Street is not isolated and can be reasonably developed in conjunction with the adjoining No. 31. 7. Nevertheless, if 29 Gordon Street did end up isolated, Mr Furlong argued that: maisonette units were an appropriate form of accommodation; amended plans for the indicative concept design for the RFB resulted in 75% of the units achieving the solar access required under the ADG; and the proposed building layout complied with the precinct Masterplan in its wall locations. 8. Whilst Mr Furlong agreed that the indicative plan for 29 Gordon Street did not contain onsite parking, as proposed in the owner's DA over 29 and 31 Gordon Street, he noted that basement car park access is provided to the combined site via 31 Gordon Street. He also noted that the location of waste facilities results from the fact that the plans are for 29 Gordon Street only. As it has no access to the rear laneways, waste collection can only occur from Gordon Street, as happens currently. Finally he argued that boarding houses are a permissible use under the zoning and, in this location affordable and student accommodation is highly desirable so a boarding house is an appropriate form of development. 9. Mr Threlfo remained concerned with solar access within the indicative RFB scheme for 29 Gordon Street. Whilst he accepted that solar access to the rear facing units could be improved by an angled glass line as suggested by the applicant, this could require fire protection treatment which would compromise the solar access. He did accept that, subject to the resolution of the fire resistance issue, adequate solar penetration would be achieved. 10. Finally, Mr Threlfo believed that the test to be addressed is whether 29 Gordon Street is capable of being reasonably developed in accordance with the applicable planning controls. He was not aware of any concrete proposals for the redevelopment of 29-31 Gordon Street, apart from the existence of a pre-DA letter of advice from Council in 2015. 11. Ultimately both planning experts agreed that the redevelopment of 29 Gordon Street as a single lot would be unlikely if it was not amalgamated with either 27 or 31 Gordon Street because provision could not be made for off-street parking. 12. However, Ms Duggan referenced the comments of the AEP should amalgamation with No. 29 not occur whereby design recommendations are provided for the development of No. 27 alone. The AEP suggests that the 'Council could consider a relaxation to the provision of onsite car parking, given the site's constraints and the close proximity of the site to Petersham railway station. Car sharing alternatives, such as Go Get, could be explored in lieu of onsite car parking…'. Shared basements across development sites was also suggested. 13. Ms Duggan argued that this demonstrated that a number of options existed. For example there was no reason why No. 29 and No. 31 could not share basement parking even if developed separately. The Council also has the ability to vary parking requirements and there was no evidence to suggest parking was an issue in the area. Furthermore, issues to do with waste management were a level of detail going well beyond a schematic design for the site. 14. In any event Ms Duggan argued these were considered hypothetical scenarios by the applicant as it appeared evident that No. 29 would be developed with No. 31 Gordon Street. 15. In closing, Ms Duggan argued that, other than the lack of parking, a complying development could be undertaken on No 29 if it was developed in isolation. She criticised the Council for approaching the assessment of the appeal DA on the basis the DCP had to be complied with in terms of requiring amalgamation despite the fact that over market offers for the adjoining site had been made and rejected. 16. Ms Duggan reiterated that the only real question was whether both the applicant's site and the adjoining site could be reasonably developed in isolation. In her view they could and the applicant had produced a scheme demonstrating this as the Council and Court requires with the objectives of the Masterplan still achieved. 17. The core of the applicant's argument on isolation was that it was not about 29 Gordon Street being isolated because it was jointly owned with 31 Gordon Street. Therefore the real question was whether 29-31 Gordon Street together could be reasonably redeveloped and the impacts developing 27 Gordon Street on its own would have on any such redevelopment. 18. Ms Duggan argued that the Court should consider the intent of each of the owners of the two adjoining sites who clearly sought to develop on their own and were progressing individual DA's which would collectively realise the intent of the DCP other than in terms of the amalgamation pattern. In her view it is irrelevant that No. 29 can't be developed on its own due to the lack of parking as there was no intent from the owner of No. 29 to develop the site in isolation of No. 31. 19. In response Mr Strati indicated that the Council was only concerned with the purchase of 29 Gordon Street not both 29-31 Gordon Street. He pointed out that the AEP is not the Council and the expert planners agreed a DA just for 29 Gordon Street isn't likely to be approved given the lack of parking. 20. The Council did agree that 29 Gordon Street was capable of being developed with either adjoining site - ie 27 or 31 Gordon Street notwithstanding that the DCP requires amalgamation with No. 27 only. 21. Related to the issue of whether or not 29 Gordon Street is capable of development in isolation and otherwise in accordance with the Masterplan is whether or not 27 Gordon Street is, ie the development the subject of the appeal. I briefly consider this issue, given it was largely not contended by the Council, before outlining my findings in terms of site isolation. 22. The applicant argued that, due to difficulties in amalgamating the site with the adjoining site, the proposed development was unable to comply with the amalgamation provisions of the DCP however, the design otherwise followed the general principles of the Masterplan. In particular, if approved, it would: 1. not detrimentally impact on the opportunity for adjoining sites to develop in accordance with the Masterplan; 2. create a streetscape and public domain outcome consistent with that envisaged in the Masterplan; 3. conform with the general principles of the Masterplan in terms of diversity of unit sizes and shapes, its provision of open space and in building massing and setback requirements; 4. comply with DCP parking requirements; 5. comply with the building depth and separation controls of the DCP and SEPP 65; and 6. be an appropriate design response to the constraints and opportunities of the site. 1. In considering the original DA for the appeal site, the AEP also suggested, inter alia, reduced density and design changes to improve the internal amenity. Most of these changes are reflected in the amended proposal including a reduction in the number of units and in the elevation, and in increased setbacks to Gordon Lane. 2. Much of the discussion from the planning experts on the amended proposal revolved around the acceptability of the privacy screening and appearance of the proposed development to Gordon Lane. Ultimately an agreement was reached in terms of appropriate conditions to address this. 3. Neither of the expert planners raised any specific concerns with overshadowing or privacy issues arising from the amended proposal, notwithstanding these were issues raised by objectors. The Council did not disagree that the amended proposal conformed with the desired future character. 4. In summary the applicant argued that the Amalgamation Report concludes that the non-compliance with the DCP amalgamation requirements of the DCP is acceptable as the DCP controls and objectives can still be met and/or justified, there are no adverse impacts on the streetscape or neighbours, and adjoining sites are not precluded from also redeveloping in a form which meets the objectives of the DCP and provides a positive streetscape outcome for both Gordon Street and Gordon Lane. 5. No amenity impact issues had been raised by the Council in terms of the development of 27 Gordon Street. Their concern was whether its development would preclude the redevelopment of the adjoining site. 6. Whilst I accept that amalgamation is an important tool to achieve urban form outcomes, the amalgamation pattern in the DCP is neither a statutory requirement or a necessity to deliver the DCP redevelopment objectives. The amended proposal indicates that it is possible develop 27 Gordon Street in isolation. 7. The conceptual design sketches produced by the applicant for an RFB development at 29 Gordon Street alone show that, notwithstanding there are design constraints, core compliance requirements such as solar access and ventilation can be achieved with the development of 27 Gordon Street in isolation as proposed. These concept sketches show development of No. 29 to the FSR and height controls permitted by the LEP and DCP. 8. The evidence to the Court suggests however, that it is much more likely that 29 Gordon Street will be developed with the other adjoining site to the south, namely 31 Gordon Street, which is in common/related land ownership and therefore as an amalgamated site. 9. Furthermore, any future application to develop either No. 29 or No. 31 Gordon Street in isolation would also be subject to the site isolation and amalgamation considerations that arise from the DCP. 10. Ideally, to facilitate onsite parking with rear access from Gordon Lane and provide greater design flexibility, the future development of 29 Gordon Street would be with No. 31. However, I am satisfied that if there were not the case, there has been sufficient analysis to demonstrate that No. 29 would not be precluded from developing in isolation generally in accordance with the built form requirements of the Masterplan and the APG. The amended proposal for No. 27 has considered this possibility whilst still trying to mirror the urban form outcomes promoted by the DCP Masterplan. 11. In this regard, the amended proposal for the appeal site meets the minimum setback requirements from both Gordon Street and Gordon Lane specified in the DCP Masterplan, has rear access from Gordon Lane as required by the Masterplan, and generally has the front nil southern and northern (side) setbacks reflected in the Masterplan whilst setting back upper levels at the rear from the northern boundary. This is all achieved whilst miniminsing adverse amenity impacts to No. 21 Sadlier Crescent and providing an acceptable streetscape presentation to Gordon Street. 12. Furthermore, the amended proposal reflects the built form outcome for the site envisaged by the DCP Masterplan, which the Council acknowledged. No issues were raised by the Council in terms of non-compliance with other controls in the DCP in terms of building envelopes, occupant amenity, setbacks, articulation zones or the domain interface. 13. For these reasons, I find that the development as now proposed and conditioned for 27 Gordon Street will have an acceptable urban form outcome having regard to the relevant controls and consideration of the constraints to amalgamation with the adjoining site at No. 29. This will not isolate 29 Gordon Street to the extent that it cannot be developed generally in accordance with the DCP controls in isolation if that situation arises but preferably in conjunction with No. 31 as appears likely and which the owner(s) of 29-31 Gordon Street as adjoining sites can and appear likely to pursue. 14. I therefore accept that an appropriate alternative amalgamation pattern to that proposed in the DCP Masterplan as sought by the applicant and as foreshadowed by the adjoining owners to the south can still achieve the intended Masterplan built form outcomes. 15. Site isolation and variation to the amalgamation pattern shown is the DCP is therefore not a basis for refusal of this application. Remaining issues raised by objectors 1. I have already dealt with most of the issues raised by objectors. I deal with the remainder as follows. 2. In terms of resident concerns about inadequate parking in the area and inadequate parking provided in the proposed development, the engineering experts advised that the DCP Parking Areas Map identifies the proposed development site as being located in Parking Area 2 which is described as a "moderately accessible" area. The site is located only about 10m away from Parking Area 1 which is described as a "highly accessible" area. 3. The parking requirement for RFB's specified by the DCP for Parking Area 2 is higher than for Parking Area 1. For the proposed development, 11 spaces would be required which includes requirements for visitor parking. If Parking Area 1 rates were applied, only 8 spaces would be required with no required provision for visitor parking. A total of 12 car off street parking spaces are provided in the amended proposal therefore exceeding the requirements of the DCP. 4. Furthermore, a condition of consent is proposed which precludes future residents of the proposed development from being provided with resident parking stickers to use to park in adjacent streets. 5. I am therefore satisfied that the parking associated with the proposed development is adequate given the site's location. More parking is provided than is required by the DCP, although I accept that the redevelopment of sites within the Masterplan Area as promoted by the DCP will likely lead to more traffic and demand for onstreet parking for visitors in the area. 6. Similarly, construction traffic impacts would be associated with any redevelopment of the site in the manner encouraged by the DCP. However, a Traffic Management Plan to manage traffic construction is a condition of consent. I note that vehicular access to the development from Gordon Lane as proposed is a requirement of the DCP and there is a condition of consent requiring that the applicant repave Gordon Lane following construction. 7. The Acoustic impact assessment did not suggest noise impacts on adjoining development would be unacceptable but the consent will be conditioned to require noise attenuation measures and to restrict construction to the hours of 7am to 5.30pm Monday to Saturday. 8. The experts did not consider that there would be an issue with the height or density of development or unacceptable amenity impacts such as overlooking, overshadowing or loss of views and I accept this expert advice. I note that privacy screens are proposed for balconies which overlook Gordon Lane and the rear yard of 21 Sadlier Crescent. 9. In terms of overshadowing and solar access, diagrams provided demonstrated solar access compliance and no unreasonable overshadowing of adjoining properties or properties on the opposite side of Gordon Street (including 24 Gordon Street). Whilst there was some overshadowing of No. 24 solar access compliance was still achieved and some overshadowing would occur with any redevelopment of the site even in full DCP compliance. 10. I also note that the owner(s) of 29-31 Gordon Street did not raise any concerns with overshadowing noting that their properties are immediately to the south and will therefore be the most overshadowed. These sites are also earmarked for redevelopment in the DCP and the applicant has attempted to maximise the opportunity for future solar access to apartments within any redevelopment of 29-31 Gordon Street. 11. The Council did not raise view loss as an issue and no expert evidence was provided on this issue. However, I consider it highly unlikely that any additional view loss impacts would arise relative to a development which fully complied with the DCP provisions, and therefore conclude that the view impacts would be reasonable and as anticipated by the controls for the site. 12. The DCP encourages redevelopment in the general form proposed and no issues were raised by the Council or arise from the relevant controls in terms of impacts on heritage values or the presentation of the development to Gordon Street. 13. The development is reflective of the form of future redevelopment of the precinct envisaged by the height and FSR controls of the LEP and objectives of the DCP for the precinct notwithstanding DCP non-compliances with the number of storeys. 14. I also note that the Council's Architectural Excellence Panel commented that the transition from existing scale single level dwellings to 6 level apartments is difficult to resolve and will negatively impact on the streetscape and on the amenity of adjoining properties until all the properties located in the Masterplan Area MA6.5 are developed. 15. I therefore conclude that all of the issues raised by the objectors, to the extent that they are valid concerns, have been addressed in the amended proposal to the degree that is reasonable given the development controls for the appeal site. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. DA201500524 for the demolition of existing buildings and construction of a residential flat building at 27 Gordon Street, Petersham is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits A and 1, are returned. __________________ Jenny Smithson Commissioner of the Court 166794.16 - Annexure A (133 KB, pdf) 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: 16 August 2016