Land and Environment Court New South Wales Medium Neutral Citation: Michael Murr V Georges River Council [2017] NSWLEC 1369 Hearing dates: 24-25 May and 20 June 2017 Date of orders: 18 July 2017 Decision date: 18 July 2017 Jurisdiction: Class 1 Before: Smithson C Decision: 1. The appeal is upheld. 2. Development Application No 2016/75 for the demolition of existing buildings and the construction of a residential flat building at 399-403 Princes Highway, Carlton is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits A, B, H, 7 and 10, are returned. Catchwords: DEVELOPMENT APPLICATION – height; bulk and scale; amenity impacts to neighbours; community objections; site isolation; Amendment to LEP; new Savings provision Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Interpretations Act 1987 Kogarah Local Environmental Plan 2012 Kogarah Local Environmental Plan 2012 (Amendment 2) Texts Cited: Kogarah Development Control Plan 2013 Category: Principal judgment Parties: Michael Murr (Applicant) Georges River Council (Respondent) Representation: Solicitors: Mr C Gough, Storey & Gough Lawyers (Applicant) Mr J Cole, HWL Ebsworth Lawyers (Respondent) File Number(s): 2016/336689 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of a development application by Georges River Council (the Council). The application proposes the development of a residential flat building (RFB) with basement parking and strata subdivision (the application) at 399-403 Princes Highway, Carlton (the site). 2. The key issue associated with the application is the impact the proposed development would have on neighbours and the character of the area. There is also an issue as to the interpretation of the Savings provision now in the Kogarah Local Environmental Plan 2012 (the LEP), as amended by Amendment 2, in terms of the ability of the Court to determine the application. Summary of the appeal 1. The application was lodged as Development Application DA2016/75 in April 2016. It proposed the construction on the site of a five storey RFB containing 22 two bedroom apartments over two basement levels of parking containing 34 resident and 5 visitor bays. A communal open space area was provided on the rooftop. Access was proposed via a driveway from Plant Street. 2. The application was advertised and 20 objections were received. The Georges River Council Independent Hearing and Assessment Panel, as a delegate of the Georges River Council, determined the application by way of refusal in October 2016. 3. The primary ground for refusal was that the proposed height, bulk and scale did not demonstrate reasonable compatibility with the scale and character of neighbouring single and two storey developments which were unlikely to be redeveloped over the short to medium term. 4. Concern was also raised with the proposed front setback and landscaping and the resultant impact on the streetscape, the removal of Norfolk Island pine trees in the northern corner of the site, the density of the proposed development, the amenity for future residents associated with the layout and design of the proposed dwellings, the impact on neighbours, the design of the communal areas, driveways and car park, inappropriate facades, and non-compliance with a number of design controls contained in the Kogarah Development Control Plan 2013 (the DCP). Concern was also raised that the development would isolate the adjoining site at 21 Plant Street. 5. Leave was granted by the Court in April 2017 for the applicant to rely on amended plans which partially addressed the Council's concerns. Design changes included a reduction in the bulk and scale of the building (by converting one of the two bedroom apartments into a one bedroom apartment) and the retention of the Norfolk Island pines. 6. However, the Council remained concerned as to the compatibility with neighbouring properties, with the facade of the development and streetscape impacts, with the internal amenity of a number of the proposed dwellings, and with the design of communal areas and the basement car parking (including access to it). Non-compliance with a number of design controls and objectives in the DCP remained of concern but the primary concern continued to be the bulk, height and scale of the building in its context and in terms of impacts to neighbours. The site isolation issue also remained. 7. The amended plans were advertised and nine objections were received. 8. At the hearing, leave was sought and granted by the Court for further amendments to the plans primarily in response to suggestions arising from the joint conferral of the expert traffic engineers, urban designers and planners. 9. These modifications included to the driveway and basement parking area which enabled a wider deep soil landscape area. The key changes however, were a reduction in the height of the building and of exterior walls facing residential neighbours, elimination of the communal open space on the roof, lowering of the lift core, and lowering the western half of the building by one storey so that the development comprised a total of four occupied levels. 10. The amendments included deletion of one dwelling, with a consequent reduction in floor space, redesign of the building's form and facades (in terms of articulation, detailing and window design), provision of acoustic and privacy screens, and improvement to apartment layouts. Reconfiguration of landscaped areas was also proposed to improve amenity particularly for the adjoining neighbour at 21 Plant Street and neighbours to the south-west within existing townhouses. 11. Mr Gough, solicitor for the applicant, argued that the modifications were minor and responded to Council contentions and expert advice. However Mr Cole, solicitor for the Council, argued that they were not minor and sought costs under s 97B of the Act. 12. Arising from joint conferral of the experts, and as a consequence of the further amendments to the application, all of the issues raised by the Council were considered by the experts to have been satisfactorily addressed. The residents however, remained concerned. 13. A decision on the application was reserved at the end of the hearing on May 25, 2017. On May 26, 2017 Amendment 2 to the LEP was made and commenced. In addition to amending the development standards that applied to the site, it modified the savings provision at clause 1.8A of the LEP which impacts on applications not finally determined at the time the amendment was made. The Court heard legal submissions on June 20, 2017 on this issue and is required to decide how the provision should be applied in terms of determining the application. The site and locality 1. The site comprises two allotments being Lots B and C in DP 101176 with street addresses of 399 and 403 Princes Highway, Carlton respectively. It is zoned R3 Medium Density Residential. 2. The site is located on the north-western corner of Princes Highway and Plant Street and has a total area of 1256.3 m² with frontages of 29.87 m to Princes Highway and 42.06 m to Plant Street. 3. The site slopes moderately in a south-easterly direction towards the highway and is visually prominent from the highway. Parts of the site previously contained a retail nursery and dwelling house. There is no substantial vegetation on the site other than two Norfolk Island pines located in the northern corner adjacent to Plant Street. 4. There is a two storey townhouse complex immediately to the south-west of the site at 405-407 Princes Highway whilst immediately to the north-west is an attached two storey dual occupancy at 21 Plant Street comprising 21A and 21B Plant Street. These neighbouring dwellings are also within the R3 zone. 5. Across Plant Street to the north-east is a relatively new Office Works outlet with underground parking accessed from Plant Street and situated within the B1 Neighbourhood Centre zone. There are other commercial developments also within the B1 zone fronting the highway. Further to the south-west are single storey commercial/light industrial uses and other two storey townhouses. Across the highway to the south-east are dwelling houses. 6. The remaining properties in Plant Street are zoned R2 Low Density Residential and predominantly comprise a mixture of older style single storey and newer two storey dwellings. 7. For ease of evidence, it was agreed to refer to 21 Plant Street as being to the north of the site, the highway (being the front) to the east, the rear being to the south and the adjoining townhouses at 405-407 Princes Highway to the west. The statutory controls 1. As indicated, the site is located within the R3 Medium Density Residential zone under the provisions of the LEP. The R3 zone in which the site is located extends for one street block only, encompassing all properties on the northern side of Princes Highway between Paris Street in the west and Plant Street to the east and also includes 21 Plant Street (the R3 Precinct). There are some 10 properties in the R3 Precinct including the two lots comprising the site. 2. The proposed use is permissible with consent in the R3 zone. The site meets the minimum site area and frontage requirements for the proposed development and is designated as being located in a flood planning area. 3. At the time of the hearing, there were no maximum height or floor space ratio (FSR) controls applying to the site under the LEP. However, the development was subject to a planning proposal referred to as Kogarah Local Environmental Plan 2012 (Amendment No. 2) – New City Plan for Kogarah (LEP Amendment 2). LEP Amendment 2 introduces site specific controls applying to the site being a maximum FSR of 1.5:1 and a maximum building height of 15 m. These controls apply only to the site with adjoining R3 zoned residential properties, including those fronting the highway and 21 Plant Street, having a proposed height limit of 12 m and FSR of 1.0:1. All other properties in Plant Street are zoned R2 and do not have the same development potential. 4. By the time of the hearing, LEP Amendment 2 had been publicly exhibited and was with the Department of Planning and Environment being finalised. The parties agreed that the making of Amendment 2 was 'imminent and certain' and regard therefore had to be had to its provisions which had specific and significant implications for the development potential of the site. 5. The development was also subject to the requirements of the DCP which contains provisions dealing with a variety of design and development matters. The parties agreed that there was a conflict between the provisions applying to the site under the DCP and those contemplated under LEP Amendment 2, in particular with regard to the height and density, and therefore the height, bulk and scale, of any development in the R3 Precinct. 6. In this regard, the DCP has site area density controls, a maximum height of 2 storeys and of 10 m, and minimum setbacks and landscaped areas which are at odds with the form of development facilitated by LEP Amendment 2. As Amendment 2 was 'imminent and certain', Mr Gough argued that the Court should therefore set aside the differing provisions of the DCP. 7. The officer's report to Council on the application (part of Exhibit 1), recommended approval to the larger form of development proposed in the original application and indicated that the DCP controls were formulated on the basis of anticipated development in the R3 Precinct being townhouses not RFBs. 8. The Council had initiated amendments to the DCP to align with LEP Amendment 2. However, in November 2013, the Council resolved not to progress these amendments pending a forthcoming Housing Strategy review. 9. There are therefore no current or draft site specific DCP provisions that apply to the site or to the R3 Precinct in which it is located which reflect or respond to the development standards contained in LEP Amendment 2. The resident objections 1. As previously indicated, a number of objections were lodged by neighbours in the vicinity of the site to the proposed development. In essence, many of these objections were to the LEP Amendment 2 controls which allow a height of up to 15 m and an FSR of 1.5:1 which was not a form of development that neighbours wished to see on the site or what current DCP controls permit. Neighbouring residents had been objecting to the form of development foreshadowed for the site under LEP Amendment 2 since 2013. 2. Written objections had therefore raised concerns with the height, bulk and scale of the development, with the appropriateness of the development in the streetscape, with the associated impacts in terms of traffic, access and onstreet parking, and with amenity impacts for neighbours in terms of overshadowing privacy and visual impacts. Residents also objected to a proposed breach of part of the building with the 15 m height control proposed in LEP Amendment 2. 3. At the commencement of the hearing, the Court viewed the site and surrounds and heard from three local residents; one from Paris Street and two from Plant Street including one of the occupants of the adjoining dual occupancy at 21 Plant Street. 4. The objectors raised the same concerns as had been expressed in their written submissions, namely that the development was overdevelopment in terms of height, scale and bulk. Concern was also expressed that the existing traffic congestion and limited onstreet parking in Plant Street would be exacerbated creating a dangerous situation. 5. It was agreed by the parties that the occupants of the dual occupancy at 21 Plant Street would be those most directly impacted by the development. The owner of 21B Plant Street, Mr Atanasov, addressed the Court in some detail and the site was viewed from his property. 6. Mr Atanasov's concerns with the development (including as amended) were the impacts from the height, bulk and scale on the amenity and value of his property. In particular, his two storey dwelling would be adjoined by a four storey building with a side wall 9m long with minimal setbacks. This would create privacy concerns including from balconies and windows overlooking his front and rear yards. There would also be traffic congestion on Plant Street and noise impacts from the development. 7. Mr Atanasov also argued that 21 Plant Street was an isolated site which could not be redeveloped separately with less FSR and height than the site under Amendment 2 and this fact had not been recognised by the applicant. Similarly, the townhouses at 405-407 Princes Highway were strata titled meaning that they also would not be redeveloped. There were two other townhouse developments in the R3 Precinct which also would not be redeveloped. Therefore, within the entire precinct, only the site and 409-411 Princes Highway could potentially be redeveloped to take advantage of the imminent new controls. This would create inconsistent future developments and disturbing precedents. 8. Specifically, it was argued that 21 Plant Street, 405-407 Princes Highway, 415 Princes Highway, 417 Princes Highway, and 22 Paris Street, despite being in the same R3 zoning and precinct, would not be redeveloped in the next 15 years irrespective of the supposed increased development potential arising from LEP Amendment 2. 9. In summary, whilst not being against redevelopment of the site, Mr Atanasov was opposed to this development given the adverse effects on his family, the character and amenity of the neighbourhood and of the streetscape. In his view, the development would stand out and dominate properties in the immediate vicinity rather than blend in and complement the neighbourhood. The evidence on the development 1. Experts were appointed by both parties in the areas of traffic engineering, town planning and urban design. 2. Through joint conferral of these experts, and with various modifications to the application as a result of that conferral, all experts agreed that there were no remaining Council contentions warranting refusal of the application. 3. In this regard, the amended basement, access and parking arrangements satisfied the traffic experts who agreed that, notwithstanding objectors' concerns in terms of limited onstreet parking and traffic issues in Plant Street, the development complied with the required parking and access arrangements. Further, there were no concerns with the safety of pedestrians or cars in Plant Street or with the capacity of the local road system to cope with the additional traffic generated by the development. As a consequence, no expert evidence, beyond the joint report prepared by the traffic experts (Exhibit 9), was provided on traffic or parking matters. 4. Similarly the four urban designers and planners engaged by the parties (the design experts) prepared a joint report (Exhibit 8) which concluded that all of the Council contentions with regard to planning and urban design matters had been addressed by modifications to the application and there were therefore no remaining design matters warranting refusal of the application. 5. Notwithstanding the agreement of the design experts that the design contentions raised by the Council had been addressed, additional evidence was sought by the Court from these experts on the issues raised by neighbouring residents. 6. In addition to the relevant planning and technical controls, the design experts had considered the following key issues in the appeal: 1. visual impacts in relation to streetscape quality and compatibility with smaller scale residential neighbours 2. residential amenity within the proposed development in terms of both apartments and common areas 3. amenity impacts for the immediate residential neighbours at 21 Plant Street and 405-407 Princes Highway 4. the isolation of 21 Plant Street. 1. In terms of visual impact and the compatibility with residential neighbours and the streetscape, the experts agreed that the amended plans demonstrated positive responses to the primary issues that the Council had raised with the application. In particular, the amended application had reduced heights of exterior walls facing 21 Plant Street and the western portion of 405-407 Princes Highway which complemented the tapering alignments of the northern and southern facades and accommodated progressive increases in building separation and deep soil landscaping towards the western boundary. 2. The experts also considered that the streetscape presentation had been enhanced by reconfiguring the building form and redesigning facades in order to eliminate a bulky appearance and achieve modulation which contributed to the streetscape compatibility and quality. This was enhanced by landscaping within the street setback and increased setbacks to residential neighbours. 3. In terms of the residential amenity for future occupants of the building, the experts noted that apartment layouts had been rationalised and reconfigured so that all habitable rooms had sufficient amenity and outlook with all apartments save one being oriented toward the rear or street rather than overlooking residential neighbours. Further, the open space which had been proposed above the basement and consequently overlooked the rear yard of 21 Plant Street had been eliminated and the rooftop communal area relocated with fixed planters along western and southern edges to prevent overlooking of neighbours. 4. In terms of other amenity impacts for neighbours, the southern and western setbacks accommodated screen planting and deep soil landscaping to prevent ground level overlooking and west facing windows of living rooms had been narrowed with translucent glass fitted to specific windows to reduce potential privacy impacts. In addition to fixed planters to protect privacy of neighbours, the rooftop communal open space had been reduced to restrict the size of potential gatherings and was located to provide the ability to manage this area given the proximity to penthouses within the proposed development. 5. Finally, the midwinter shadow impacts which most affected the townhouses at 405-407 Princes Highway were within acceptable levels albeit that two townhouses would still have midday sunlight restricted but would continue to receive 2 to 2.5 hours of sunlight daily to living room windows and at least half of the principal private open space areas. 6. The proposed development has a height in the order of 13 m at the rear where it is in closest proximity to 21 Plant Street and the townhouses to the west. At its lowest height of 12.93 m, the building is more than 2 m below the maximum height permitted in LEP Amendment 2 in recognition of the proximity and circumstances of the dwellings at 21 Plant Street and 405-407 Princes Highway. 7. The building breaches the 15 m proposed control by some 1.48 m to accommodate the lift overrun however, the applicant argued, and the experts agreed, that this was in the centre of the site where no amenity impacts arose. A further breach of the height to 16.23 m was proposed in the south western front portion of the site adjoining the highway resulting from the need to meet minimum flood planning levels. The applicant argued, and the experts agreed, that this breach did not result in unacceptable amenity impacts for neighbours and was offset by the benefits arising from the reduction in height proposed at the rear. 8. However, Mr Cole submitted that breaching the 15 m height control proposed in LEP Amendment 2 would set an undesirable precedent being the first development approved under these new controls yet not complying with them. Although he accepted a clause 4.6 request was not required under the (then) current LEP, Mr Cole argued that the considerations under cl 4.6 should be applied given the applicant sought to rely on the proposed controls in Amendment 2. He argued the applicant was 'double dipping' by seeking the development benefit of the new controls proposed under Amendment 2 but also exemption to having to justify variations to these controls relying instead on the provisions of the existing LEP. 9. Mr Cole reinforced the claims by Mr Asanatov that there was limited if any real prospect of any of the other surrounding properties in the R3 Precinct being redeveloped given the nature of existing development and notwithstanding the controls proposed in LEP Amendment 2. 10. Mr Cole argued that the development should provide a more appropriate interface with its neighbours given the change in controls for these properties and that it was unlikely that they would be redeveloped in the foreseeable future. He referenced Click here to enter text.Seaside Property v Wyong Shire Council [2004] NSWLEC 600 which deals with development at the interface between zones. At [25] Bly C states: 25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like. 1. Mr Gough argued that the adjoining sites were in the same zone and therefore Seaside did not apply. In any event, transition had been provided for by the reduction in the height of the development at the rear immediately adjoining its residential neighbours and in the generous setbacks and landscaping provided. He also argued that the provisions under LEP Amendment 2 already provided for transitioning in the differing controls for the subject site relative to the adjoining properties in the same zone given that these properties had a lower height limit and FSR in LEP Amendment 2. 2. The Council sought a further reduction in height from 4 to 3 storeys adjoining 21 Plant Street and proposed a condition of consent requiring the deletion of the most north westerly apartment to achieve this albeit the design experts did not consider such further reduction in height warranted. The experts acknowledged that such a reduction would likely improve the amenity for the occupants of 21 Plant Street but agreed it would not necessarily have a beneficial streetscape outcome. The applicant also argued that the third storey would be of a similar height to the ridge of 21 Plant Street so it would not be transitional. 3. The applicant's experts argued that there were no material impacts on 21 Plant Street in terms of overshadowing and overlooking. In this regard, the development included fixed planter boxes for the edge of the elevated communal open space, translucent glazing for west facing windows and privacy screens where required. Furthermore, the proposed southern setback (to 21 Plant Street) was well in excess of that required by the Apartment Design Guide (ADG) and the retention of the Norfolk Island pines and the proposed landscaping situated in this setback at the front of the site would assist with minimising the impacts on 21 Plant Street and in terms of streetscape impact. 4. The design experts agreed there would be some overshadowing of the adjoining townhouses at 405-407 Princes Highway but that the minimum solar access requirements of the relevant controls could still be met. The applicant nevertheless offered to shift the building a further 900 mm from the western boundary to reduce this overshadowing. This modification would result in a slight reduction of floor space and in the rooftop communal open space and a slight increase in the ground level open space, and improve the outlook from the rear yard of 21 Plant Street. It would also further distance the front balcony of the development from the front yard of 21 Plant Street being closer to the street. 5. The applicant argued that, other than two minor height breaches away from neighbours which were offset by a lowering of height elsewhere on the site, the development was compliant with all relevant controls in LEP Amendment 2 including with the FSR, all setbacks, provision of deep soil landscaping and landscaped site area. Two more parking bays were proposed than were required. Further, through LEP Amendment 2, the Council had effectively 'upzoned' the site to achieve the outcome proposed by this application having full regard to the controls applying to, and circumstances of, the adjoining residential properties. 6. Therefore the applicant argued that the development clearly reflected the desired future character of the site and the area as envisaged by the impending controls in LEP Amendment 2. 7. In submissions, Mr Gough argued that, whilst there would be inevitable impacts associated with the proposed development, the Court could not reasonably conclude that the impacts were unreasonable. In particular, in terms of the adjoining residential neighbours, there was no unreasonable overshadowing or overlooking. Whilst there may be some limited overlooking from the communal open space this was not unusual in an urban environment and the applicant had offered to increase the width of the planter boxes so that this would now be unlikely to occur. There were also now significant distances proposed between the communal open space and the rear yard of 21 Plant Street and the communal open space that had been of concern on the ground floor had been deleted. 8. Finally, Mr Gough re-iterated that the setbacks and height on the rear portion of the building closest to neighbouring residential properties complied with LEP Amendment 2 and the ADG and there was extensive landscaping including to 21 Plant Street. The further height reduction sought by the Council was not supported by any of the design experts, nor had it been the subject of any expert evidence. Nevertheless, the applicant had offered to increase the upper level setback to the townhouses to further minimise overshadowing impacts. He also argued that the owner of 21 Plant Street must accept that the controls allow the form of development proposed having regard to a similar finding in Seaside. 9. In relation to the site isolation of 21 Plant Street, it was noted that valuations have been prepared for the site and offers made by the applicant to purchase the site prior to the application being lodged but these offers were not accepted. 10. The site at 21 Plant Street is 18.9 m wide and has an area of some 546 m². It contains a relatively recent dual occupancy development in semi-detached two-storey configuration. As a development site it would not meet the LEP minimum lot requirements for RFBs in the R3 zone or for multi dwelling housing or dual occupancies. The LEP also requires a minimum frontage of 20 m for multi dwelling housing and RFBs. 11. The design experts disagreed on whether 21 Plant Street could feasibly be redeveloped for an RFB given it was in dual ownership, had restricted ability to provide offstreet parking or comply with side setback or site area or frontage requirements, and was adjoined by lower density dwellings to the north and the proposed higher density development of the appeal site to the south. 12. It was noted however, that 21 Plant Street is not part of an amalgamation precinct and was in fact excluded from specific site amalgamation requirements of the DCP. The planning experts agreed that, whilst under the minimum lot size and frontage controls for an RFB, an RFB could in fact physically be developed on the site given its width and dimensions and having regard to likely applicable setbacks. 13. Whilst there was no expert evidence on whether redevelopment of 21 Plant Street for an RFB would be economically viable, the experts noted that, given the value of the current dual occupancy, it was not likely to be currently feasible to demolish it and construct an RFB given the proposed FSR of 1.0:1 for the site under LEP Amendment 2. 14. The planning experts concluded that the amalgamation of 21 Plant Street with the appeal site was not feasible because it was not reasonable to expect an adjoining owner to pay significantly more than the current market value for a site with limited benefit in terms of FSR and site area. However, they remained of the opinion that a 4 storey RFB could be constructed in the future were it feasible which would provide a suitable transition to the R2 zone to the west. 15. The planning experts also considered that there was a benefit to the streetscape and to the outlook from the adjoining townhouses in having a split built form as opposed to the built from fronting Plant Street that would occur if 21 Plant Street was amalgamated and developed with the appeal site. 16. Finally, Mr Gough noted that it would be unusual for a planning control to require amalgamation of sites which had different height and FSR controls as was the case with the appeal site and 21 Plant Street. 17. Mr Layman, planner for the applicant, argued that 21 Plant Street and the existing townhouses to the west could also be extended to accommodate additional storeys or attic extensions in accordance with the proposed new controls in LEP Amendment 2 even if the redevelopment of these properties was unlikely. This as a likely outcome of the controls introduced by LEP Amendment 2 was not supported by the other experts. Findings on the development and costs 1. The application the subject of the appeal was substantially amended between the time of lodging the appeal and the hearing. This was in response to advice and comments from the appointed experts and having regard to issues raised by the neighbouring resident at 21B Plant Street. As a consequence, there were no remaining design or amenity contentions raised by the parties' experts in terms of the amended application before the Court. 2. A number of residents of Plant Street and the neighbour at 21B Plant Street remained concerned however, with the amended development and the Council sought to further reduce the height of the development adjoining 21 Plant Street accordingly. 3. The objectors' concerns largely arise from Amendment 2 to the LEP which generally facilitates the form of RFB development proposed. The parties agreed that the Amendment 2 controls were the appropriate controls to apply given the finalisation of the Amendment was imminent at the time of the hearing. The development proposed in terms of its bulk and scale must therefore be considered to meet the desired future character for the development on the site and in the immediate area. 4. Notwithstanding, the applicant has endeavoured to minimise impacts to neighbours. However, impacts are inevitable given a greater height and FSR is permitted on this site relative to its neighbours. Whilst two breaches to the LEP Amendment 2 height control are proposed, in the portion of the building most proximal to neighbouring residential properties, the height proposed is some 2 m less than the controls facilitate having regard to these neighbours. Furthermore, the experts agreed that the height breaches do not of themselves result in any adverse amenity impacts for neighbours. 5. Furthermore, other than these two height breaches, the development complies in all aspects with the relevant LEP controls, including those in Amendment 2, in terms of FSR, setbacks, and landscaped area and it was agreed that no unreasonable amenity impacts arose as a consequence of the development. 6. Having regard to the fact that the proposed development, as amended, generally reflects the intended development outcome in terms of bulk and scale arising from the LEP Amendment 2 controls, and notwithstanding that there will be impacts on neighbours as a consequence, I have formed the view that there is no reasonable basis to refuse this development and it should therefore be approved. 7. As found in Seaside, the owners of adjoining properties must accept the form of development that the Council is promoting for the site through LEP Amendment 2 albeit I accept that it may have adverse consequences relative to the amenity they currently enjoy. Such development must inevitably have impacts on lower density development adjoining. In this instance, the applicant has, in my view, made reasonable endeavours to address those impacts. This includes reducing development yield by lowering of the building at the rear and deleting an apartment on the fifth level, relocating communal open space and providing generous setbacks and landscaping relative to the required controls. FSR compliance is also achieved. 8. In terms of the height breach, whilst I accept that this may be the first breach of the 15 m control under LEP Amendment 2, it occurs in only two locations being to facilitate a lift overrun in the centre of the site and to comply with flooding floor level requirements adjoining the highway away from 21 Plant Street. These breaches are offset by the lowering of the building below the permitted maximum height in more sensitive locations relative to neighbours. There is therefore an appropriate distribution of floor space and height across the site. 9. It was agreed by the planning experts that the DCP does not provide meaningful controls when considered in the context of the controls under LEP Amendment 2 and I agree with this finding. The Council acknowledged that the DCP controls were not for RFB development but for townhouses despite the fact that RFBs are permitted on the site. Accordingly, in this instance it is appropriate to set aside the DCP controls and instead give appropriate weight to the LEP controls introduced through Amendment 2. 10. The design experts agreed that, on its merits, the application was supportable even without the additional modifications offered by the applicant during the hearing. The applicant did not dispute that there would be impacts on 21 Plant Street and on the adjoining townhouses but argued that these impacts were reasonable. In the circumstances I find that they are. 11. Whilst I accept that it is unlikely that 21 Plant Street will be redeveloped in the foreseeable future there was no feasibility analysis to suggest that it could not be. I cannot conclude that 21 Plant Street is an isolated site having regard to the Court authorities dealing with site isolation and having considered the expert evidence on this issue which reached the same conclusion. 12. I also agree with the applicant that it is not reasonable to require amalgamation of 21 Plant Street with the appeal site. Although in the same zone, it has different development controls and the DCP does not require such amalgamation. I also note the expert evidence that development across both the appeal site and 21 Plant Street could have adverse implications for the outlook from the townhouses adjoining both sites to the west. 13. I do not accept that there is any basis for the Council requiring the further reduction of the height of the development to three storeys adjoining 21 Plant Street as is sought by a condition of consent. The design experts did not seek this outcome, suggesting it may, in fact, have adverse streetscape impacts, nor does it accord with the contemplated controls for the site. It is also not required to address specific amenity impacts from the development other than impacts which may be reasonably expected from any development substantially higher and bulkier than what exists on neighbouring sites as is facilitated by the LEP Amendment 2 controls. I therefore do not support this condition sought by the Council. 14. However, I do support the amendments offered by the applicant to shift the development 900 mm closer to Plant Street to reduce the building bulk adjoining the western boundary and thus reduce impacts to the townhouse occupants to the west and on the rear yard of 21 Plant Street. This amendment will also reduce any potential overlooking from the front upper balconies to the front yard of 21 Plant Street, albeit the retained Norfolk Island Pines will largely screen the yard in this location. The conditions have therefore been amended by me to reference the plan showing this amendment 15. In terms of the cost order sought for the amendments to the application before the Court, I have formed the view that the amendments are minor and therefore a cost order under s97B of the Act does not apply. In particular, the amendments were in response to issues raised by the Council and the residents, or were as recommended by the design experts to improve the amenity for neighbours and the streetscape, and they did not substantially change the form of development proposed. The implications of Amendment 2 savings provision changes 1. Notwithstanding that I have determined that there are no grounds to refuse the application and it should therefore be approved, I am still required to address the amended savings provision introduced into the LEP by Amendment 2 given that amendment is now in force. 2. It is the case that a development application must be determined on the law as it stands at the time of the determination including when it is determined on appeal to the Court. 3. Clause 1.8A of the LEP as a result of Amendment 2 now reads as follows: 1.8A Savings provisions relating to development applications (1) If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. Note. However, under Division 4B of Part 3 of the Act, a development application may be made for consent to carry out development that may only be carried out if the environmental planning instrument applying to the relevant development is appropriately amended or if a new instrument, including an appropriate principal environmental planning instrument, is made, and the consent authority may consider the application. The Division requires public notice of the development application and the draft environmental planning instrument allowing the development at the same time, or as closely together as is practicable. A development application made, but not finally determined, before the commencement of Kogarah Local Environmental Plan 2012 (Amendment No 2) is to be determined and have effect as if that Plan had not been made, but only if an amendment made by that Plan prevents a consent authority from granting consent to the application. 1. Prior to the modifications to add cl 1.8A (2) through LEP Amendment 2, the application would have been determined under cl 1.8A(1) and could be approved by the Court as proposed. 2. A letter was tendered from the Department of Planning and Environment to Georges River Council dated May 25, 2017 (Exhibit 10). The letter confirms the making of LEP Amendment 2 and notes that the Department had made a series of amendments to the final version of the LEP. One of those amendments was described as follows: A savings provision has been included to capture Development Applications currently lodged but not determined that would otherwise become prohibited development under the amendment. 1. The issue which arose with the coming into effect of Amendment 2 was that it introduced the anticipated controls applicable to the site, but the application does not comply with the height control. The legal argument centred on whether or not that breach of the height control prevented the Court as the consent authority 'from granting consent to the application'. 2. Specifically, Amendment 2 introduced a height limit on the site which did not previously apply by inserting the following clause 4.3: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to establish the maximum height for buildings, (b) to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas, (c) to provide appropriate scale and intensity of development through height controls. (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. 1. The Height of Buildings Map shows a maximum height permissible on the site of 15 m. The application proposes heights in excess of 15 m over part of the site. 2. The LEP contains the standard clause 4.6 not altered by LEP Amendment 2: 4.6 Exceptions to development standards (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 Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary 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 Secretary before granting concurrence… 1. The parties agreed that, if the application was required to be determined under the LEP as amended by Amendment 2, then height was a development standard that could be varied if the requirements of cl 4.6 were met. If the application was determined as if Amendment 2 had not been made then cl 4.6 did not apply as there was no height development standard then in the LEP. 2. Legal argument was presented to the Court on how cl 1.8A as now amended should be applied in terms of determining the application. 3. Both parties agreed that the development application had been 'made' and was not 'finally determined and that the savings provision at cl 1.8A applied to the determination of the application. The Council's submissions 1. The Council referenced the Court's decision in De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1 where cl 1.8A existed as it did prior to the change proposed in LEP Amendment 2. In that decision, Craig J interpreted cl 1.8A as ambulatory, that is meaning that even if an LEP Amendment did not contain a savings provision, an application lodged prior to the amendment would still be 'saved' from any new LEP provisions by cl 1.8A. However, this interpretation was overturned by the Court of Appeal in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 finding cl 1.8A (as it then was), was not ambulatory. Therefore if an amendment to an LEP also did not have a savings provision, the LEP was amended on its terms and applications lodged prior to the amendment would need to be determined under the current law. This was seen to give rise to procedural unfairness to an applicant. It was suggested by the Council that this is why LEP Amendment 2 also introduced cl 1.8A(2). 2. Mr Cole submitted that the amendment to the LEP did not prohibit the development in terms of the use. Furthermore there was no restriction on the Court determining the application either by conditioning the development to achieve compliance with the controls in the LEP as amended or by refusing the application given the non-compliance with the height standard and the lack of a cl 4.6 request and assessment. 3. Specifically, it was the Council's submission that cl 1.8A of the LEP as it exists now should be interpreted such that the currently applicable height limit applies to the development application and a cl 4.6 objection would need to be upheld for the Court to grant consent to the application. Alternatively, the Court could determine to grant partial consent or grant consent subject to conditions which removed the height breach, or the applicant could elect to amend the application to remove the breach. 4. Mr Cole referenced Sutherland Shire Council v Benedict Industries Pty Ltd (No.8) [2017] NSWLEC 4 where Justice Pepper considered the principles relevant to the interpretation of legislation including planning instruments: [388] Thus, the task of construction must begin with the consideration of the text itself with recourse to its context, which includes the general purpose and policy of a provision, and of the enactment itself. [389] The determination of the purpose of the particular provision or statute may be found not only in an express statement of the purpose in the statute itself, but also by reference to textual and structural indicators, and where appropriate, by reference to extrinsic material. [390] The task is one of ascertaining the objective, and not the subjective, intention of those who promulgated the legislation … 1. Justice Pepper went on to note that subordinate legislation is generally less carefully drafted than primary legislation and may therefore be construed having regard to more practical considerations, rather than by a rigorous examination of its language stating at [393] 'planning instruments are not always drafted with pellucid clarity or with a keen eye to taxonomy and that "any attempt to always find planning logic in planning instruments is generally a barren exercise" (Calleja v Botany Bay City Council [2005] NSWCA 337; (2005) 142 LGERA 104) at [25]…'. 2. The Council therefore argued that the Court should consider the text of cl 1.8A(2) in context having regard to its purpose as a savings provision and the fact that the provisions in an LEP must be construed practically. Mr Cole submitted that the new provision clearly had the purpose of preventing unfairness to an applicant who had acquired a site with a development purpose in mind and prepared and submitted an application which then became subject to a new provision under a new plan. The prevention of unfairness must be tempered with a construction and application of the clause that gives rise to certain results and outcomes. 3. He submitted that a new provision could completely prohibit the consent authority from granting consent to an already lodged application. This would be an unfair scenario sought to be avoided and this is what cl 1.8A, as amended and properly construed in context having regard to its purpose and nature, is seeking to achieve. He argued for a logical and common sense interpretation of the clause. 4. Mr Cole argued that the Court was not prevented from concluding that a cl 4.6 objection is required and requiring such a request from the applicant. 5. Mr Cole then turned his mind to the meaning of the word 'prevent' by reference to dictionary definitions which were generally in the form of 'to keep from happening'. He argued that the height standard did not keep from happening the granting of consent. Consent could be granted so long as a cl 4.6 objection was upheld. He argued that it is long settled law that a development standard is not a prohibition unless the planning instrument specifically excludes the application of cl 4.6 to the provision. Not complying with the standard therefore would not make the application for a prohibited development. 6. The Council argued that the application was for the development of an RFB in its general sense and the details of its form, including its height, could be modified by the applicant or the consent authority in granting consent. It was not restricted to an RFB of a certain height. 7. Mr Cole submitted that it would be an absurd result if the savings provision had the unintended effect of leaving the decision on which LEP determined the application to the discretion of an applicant: that is being solely at the discretion of the applicant as to whether or not to submit a cl 4.6 request to support the proposed breach of a standard. 8. He argued that it would be irrational that an applicant's decision on how to address compliance with a standard could dictate the ability of a consent authority, including the Court, to consent to an application. The intent of the savings clause is to 'save' lodged applications and give fairness to applicants of such applications but there would be little if any unfairness in an applicant having to comply with cl 4.6. Therefore the savings provision was not intended to deal with such circumstances. If so, it would also leave the savings clause with little work to do as it would be dependent on what an applicant elects to do. 9. In the Council's construction, the amendment to the savings provision introduced through Amendment 2 had the intent of not applying the LEP as amended only where the amendment prohibited the application and prevented consent being granted as a result of amendments to land use permissibility, zoning, and provisions which could not benefit from the application of cl 4.6. However, if the provision can be subject to a cl 4.6 objection, or be determined by way of a partial grant of consent or conditions removing the breach such that the Court is not prevented from granting consent, then the savings provision is not engaged. 10. Finally, Mr Cole submitted that this conclusion was supported having regard to the provisions of the Interpretations Act 1987, to determine the meaning of the amended cl 1.8A if an ordinary meaning leads to an absurd or irrational result. Regard had to be had to the Department's letter which references development that would otherwise be prohibited which supports, to the extent that there is ambiguity, a construction of cl 1.8A(2) which means that it is only applications for prohibited development which are prevented from being consented to, that are saved, not those which breach a development standard, the breach of which can either be rectified or objected to (and therefore potentially justified) by the applicant. The Applicant's submissions 1. Mr Gough took a more simple approach to interpretation of the amended cl 1.8A taking the literal interpretation of the words added to the clause by Amendment 2. 2. He submitted that the Court could not approve the application as lodged for the development sought under the amended LEP because it breached the maximum height development standard introduced into the LEP by Amendment 2. Furthermore, no cl 4.6 request had been prepared or assessment undertaken as required to support the height breach which is a pre-condition under the amended LEP for granting consent to a development which breaches that height standard. 3. Mr Gough argued that the application is the development application as lodged with the Council prior to the amendment to the LEP and therefore it fell under the savings provisions of cl 1.8A. 4. Furthermore, there was no requirement under the Environmental Planning and Assessment Regulation 2000 for a cl 4.6 written request to have to comprise part of a development application even if a standard to which the clause could be applied to was proposed to be breached in that application. 5. He acknowledged that, had the application included a cl 4.6 objection, consent could be granted under the LEP as amended. However, such an objection had not been made because it was not required when the application was lodged and was not required now as the wording of cl 1.8A(2) meant the application was saved as the Court was prevented from granting consent to the application as lodged. 6. Specifically, as no cl 4.6 was provided, the Court could not determine the application by the granting of consent even if it were minded to do so. Accordingly, under the provisions of cl 1.8A(2) consent would need to be issued under the existing LEP prior to Amendment 2 coming into effect 7. If however, he was wrong, and I agreed with the Council and determined that I was required to assess the application under the LEP as amended, then Mr Gough advised that the applicant would like the opportunity to file the required cl 4.6 request for the height breaches proposed to the height control introduced through LEP Amendment 2. Findings on the application of LEP savings clause 1.8A 1. Notwithstanding the argument of the Council, the explanation given by the Department for modifying the savings provision (clause 1.8A) does not assist in determining how the clause as worded should apply although it does indicate what was intended. Unfortunately the clause wording at cl 1.8A(2) does not match or reflect the explanatory wording in the letter. 2. If the intent of cl 18A(2) was to only relate to 'prohibited development' in terms of permissible uses, zone changes or non-discretionary provisions as the Council contends, rather than development precluded by a contravention of a development standard, it doesn't state this. The amended cl 1.8A must be read as it is constructed which is by referencing only to prevention of the granting of consent which could arise in circumstances other than just by a development being 'prohibited'. 3. In this instance the development is not 'prohibited', in the commonly understood use of that word in planning controls and assessment, but there are pre-conditions to be met under the LEP as amended before consent can be granted. As those pre-conditions are not met and cannot be mandated by the Court, then, in my view, consent cannot be granted and the application must therefore be determined as if Amendment 2 to the LEP had not been made. 4. The parties agree that the application as it currently stands proposes breaches of the height control for the site introduced by LEP Amendment 2 and that, if those breaches are to be consented to, a written request under cl 4.6 of the LEP needs to first be submitted by the applicant and considered by the Court. Also that such a written request has not been submitted or considered. 5. Therefore I am precluded from consenting to the application as sought by the applicant with breaches to the height control as a consequence of cl 4.6 (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…'. 1. I cannot agree with the Council that I could issue a partial consent or condition a consent to redress the breaches. The clause is clear that no consent can be granted of any form without the pre-condition contained in cl 4.6(3) having first been met. 2. I also cannot agree with the Council that the Court has the power to require the applicant to submit a cl 4.6 request in order that the application can then be assessed under the LEP as amended, albeit this was a course of action that could have been pursued by the applicant once Amendment 2 came into force. 3. I do not disagree with the Council that the intent of the Department in its amendment to the savings provision may have been to confine those applications to be 'saved' to prohibited development which could not become permissible by relatively simple actions of the applicant. However, the additional wording added by cl 1.8A(2) does not confine itself to, or even reference, prohibited development. It also does not reference 'determining' applications only to determination by the granting of consent. 4. In terms of whether or not the application of the amended cl 1.8A in the manner I suggest is correct leads to an absurd or irrational application, it is not the case that the coming into effect of Amendment 2 has dramatic impacts on the outcome of the development application as may be the case for 'prohibited' developments typically 'saved' by savings provisions when LEP provisions change. 5. In this instance, the development has had regard to and generally reflects the planning controls in Amendment 2 given the imminency of the amendment at the time the application was lodged. On merit, the experts for both parties supported the application on the basis of the impending LEP Amendment 2 controls now in effect and the application would have been consented to (as proposed) by the Court even had the LEP Amendment 2 not been made at the time of the determination. 6. Similarly, once Amendment 2 had been made the same application could be lodged and approved in the same form save only for the addition and consideration of a cl 4.6 request which would argue presumably the same arguments as those promoted by all of the experts which would lead to the same conclusions as to the acceptability of the application, and therefore of the development, with the heights proposed. The only difference would be a procedural one with the additional requirement to first uphold the formal cl 4.6 request. 7. Therefore, no better planning outcome is achieved by assessment under either the LEP immediately prior to or post Amendment 2 and no different merit considerations would apply given the objectives of the zone have not changed and those introduced with the height standard reflect the considerations already at play in considering the application prior to Amendment 2 coming into effect. 8. In summary, I have determined that I am precluded from consenting to the application that is before the Court under cl 4.6(3) of the LEP (which was not affected by LEP Amendment 2) as that amendment introduced height controls which the application breaches and no cl 4.6 request has been submitted by the applicant for me to consider. Therefore consent can not be granted under the LEP as it now applies. Accordingly, under cl 1.8A(2) in order to grant consent to the application in its current form, as is my intent, consent must be granted as if Amendment 2 to the LEP had not been made. That is the consent I now so issue. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No 2016/75 for the demolition of existing buildings and the construction of a residential flat building at 399-403 Princes Highway, Carlton is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits A, B, H, 7 and 10, are returned. ____________________ Jenny Smithson Commissioner of the Court 336689.16 Smithson (C) (492 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: 18 July 2017