Land and Environment Court New South Wales Medium Neutral Citation: St George Property Construction Pty Ltd v Cumberland Council [2017] NSWLEC 1433 Hearing dates: 10 July 2017 Date of orders: 22 August 2017 Decision date: 22 August 2017 Jurisdiction: Class 1 Before: Smithson C Decision: (1) The appeal is upheld. (2) Development Application DA 2016/269 for demolition of existing structures, consolidation of lots and construction of a shop top housing development at 102-108 Great Western Highway and 4 Joyner Street, Westmead is approved subject to the conditions set out in Annexure "A". (3) The exhibits, other than Exhibits A and 2, are returned. Catchwords: DEVELOPMENT APPLICATION: Site consolidation; objections; condition requiring public pedestrian path Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Roads Act 1993 Holroyd Local Environmental Plan 2013 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: St George Property Construction Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Counsel: Mr P Clay (Applicant) Solicitors: Mr P Saab, Macquarie Lawyers (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 2016/369762 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under section 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Cumberland Council (the Council) of Development Application DA 2016/269 (the application) for construction of a shop top housing development at 102-108 Great Western Highway and 4 Joyner Street, Westmead (the site). 2. Specifically, the development proposes the demolition of existing structures, consolidation of four lots into one lot, and construction of a part six and part seven storey development comprising ground floor commercial premises and upper level residential units above two levels of basement parking. 3. Vehicular access is proposed from Joyner Street through use of 4 Joyner Street to provide a proposed access handle from Joyner Street to the Great Western Highway lots. This access arrangement will see the removal of an existing driveway on Great Western Highway which is a classified road. The balance of 4 Joyner Street will comprise landscaping and communal open space. 4. The site is generally hatchet shaped with multiple boundaries comprising: * a southern frontage to Great Western Highway of 50.45 m and a southern boundary to 2A Joyner Street of 30.16 m, * a northern (rear) boundary of 50.28 m to the rear of properties fronting Telfer Place and of 30.19 m to 6 Joyner Street, * a western side boundary of 43.40 m to 110 Great Western Highway and of 6.17 m to 8 Telfer Place, and * an eastern side boundary of 36.0 m to 2 and 2A Joyner Street and a frontage of 15.12 m to Joyner Street. 1. The combined site area is some 2,668 m². No's 106 and 108 Great Western Highway and 4 Joyner Street each currently contain single storey dwellings whilst 102 Great Western Highway is a vacant lot. There is no significant vegetation on the site which has a fall of some 3 m towards the rear from the south to north. 2. The site is 1 km west of the Parramatta CBD and is located within the Mays Hill Transitway Station Precinct. Redevelopment is currently underway within that precinct although surrounding development still predominantly comprises existing older style one and two storey dwellings. 3. The desired future character will see a significant transition in built form to higher density development. This is evidenced by the recent approval of a seven storey mixed use development adjoining the site to the east at 2 to 2A Joyner Street whilst to the north land is zoned for higher density residential development up to four storeys albeit current development comprises low scale dwellings. There are also single storey dwellings to the west fronting Great Western Highway. However, these are zoned for higher density mixed use redevelopment up to six storeys with commercial uses required at street level. 4. On the opposite side of Great Western Highway are Westmead Reserve, Fort Macquarie Cannon, and Westmead Cemetery which are listed as locally significant heritage items under the provisions of the Holroyd Local Environmental Plan 2013 (the LEP). 5. The portion of the site fronting the highway is zoned B6 Enterprise Corridor whilst 4 Joyner Street is zoned R4 High Density Residential under the LEP. The proposed development is categorised under the LEP as residential flat building (RFB) and home business, which are permissible uses in the zones with consent, but was referenced as shop top housing in the appeal. 6. The permissible height and floor space ratio (FSR) under the LEP for the site do not align with the zoning boundaries. 7. The maximum permissible height that applies is 23 m for approximately two thirds of the B6 zoned portion of the site adjacent to the highway and 15 m for the remainder of the site including the R4 zoned land. The proposed building is generally located in the portion of the site to which the 23 m height limit applies. 8. The maximum FSR for the portion of the site within the B6 zone is 2:1 whilst the maximum FSR for the portion of the site within the R4 zone is 1.2:1. The floor space of the proposed development is located wholly within the portion of the site zoned B6 and therefore a maximum 2:1 FSR applies. 9. The application was lodged with the Council in July 2016. At that time it proposed an RFB comprising 8 'Soho' apartments (lower level commercial, upper residential) and 50 residential units above two levels of basement parking for 83 cars. 10. The application was notified and two submissions were received. One submission raised concerns with the 'Soho' apartments rather than standard commercial tenancies at ground level, the lack of consolidation with properties in Telfer Place (and the offers made to those property owners), and the nature of the proposed walkway on the western boundary to give access from Telfer Place to the highway. There was however, support for vehicular access using Joyner Street. 11. The second submission was from the owners of a property at the rear in Telfer Place raising concerns with the close proximity of the development and potential adverse impacts on their property including privacy impacts, access to light, property value and increased traffic. Concern was also raised with the adequacy of the stormwater and sewer systems to cope with the additional development given existing problems with these services. 12. Roads and Maritime Services provided concurrence to the development pursuant to section 138 of the Roads Act 1993 subject to conditions. 13. In December 2016, the applicant lodged an appeal with the Court against the refusal of the application. 14. The Council contended that the proposal should not be approved for a number of reasons including height and FSR non-compliances, the proposed inclusion of 'Soho' apartments and the apartment mix, inadequate building separation and setbacks, poor solar and internal amenity for a number of apartments, the proposed fencing and parking arrangements, and inadequate vehicular and pedestrian access arrangements. 15. Primarily however, the Council was concerned that the proposed development did not achieve the consolidation/amalgamation pattern required in the Holroyd Development Control Plan 2013 (the DCP), and that insufficient information had been submitted to demonstrate that the alternative consolidation pattern proposed would be able to achieve the development outcome as prescribed by the DCP. 16. Part N of the DCP deals with development in the Mays Hill Transitway Station Precinct. Section 1.1 of Part N deals with site consolidation/amalgamation and frontage. The following are the objectives and relevant controls of s 1.1: Objectives O1. To ensure all sites provide the required minimum frontage to adequately provide for basement car parking. O2. To ensure all sites achieve the required minimum width to allow for a site configuration that permits a consistent character and landscaped open space to the rear of sites. O3. To ensure any site amalgamation pattern does not restrict the development opportunity of any adjoining site or the ability of adjoining sites to provide basement carparking or rear open space. O4. To ensure future redevelopment results in quality streetscapes, amenity, and appropriate passive surveillance, landscape and open space. O5. To require a more continuous building form along the Great Western Highway. O6. To ensure vehicular access for properties facing the Great Western Highway is provided from secondary streets or laneways. Controls C1. Amalgamation of lots in accordance with Figure 4 (a) and (b) is required for redevelopment. C2. Land locking of adjoining sites is not permitted. Properties shall be amalgamated to ensure the minimum frontage is obtainable without reducing the developability of adjacent properties. C3. Notwithstanding C1, the minimum lot frontage for all development fronting the Great Western Highway shall be 45 metres. C4. In instances where amalgamation cannot be achieved, the following information must be submitted with any development application: Two written valuations indicating the value of the remaining sites that were to be developed in conjunction with the applicants properties. These are to be undertaken by two independent valuers registered with the Australian Valuers Institute, and Evidence that a reasonable offer has been made to the owners(s) of the affected sites to purchase and valuation reports. C5. Alternative consolidation patterns may be considered by Council if it can be demonstrated that development controls can be satisfied on the land and adjoining properties. C6 Where amalgamation (as required) is not achieved, the applicants must show that the remaining sites, which are not included in the consolidation, will still be able to achieve the development outcome prescribed in this DCP, including achieving the required vehicular access, basement parking and built form. 1. Figure 4(a) is reproduced below with the site comprising the most eastern three lots fronting the highway and the third most northerly lot in Joyner Street: Figure 4(a) - Lot amalgamation plan - north 1. The DCP requires the three lots fronting the highway which comprise the majority of the site to be amalgamated with the four lots at their rear fronting Telfer Place. The DCP also requires the provision of a pedestrian link adjoining the western boundaries of 10 Telfer Place and the site to connect Telfer Place to the highway. A 4 m wide area of land to accommodate the link is provided for in the application from the highway to the rear of 10 Telfer Place accordingly. 2. The parties undertook conciliation under section 34 of the Land and Environment Court Act 1979 in an attempt to address the Council's contentions. As agreement on an acceptable form of development could not be reached, the conciliation was terminated and the matter set down for hearing. 3. Arising from the conciliation, amended plans were produced and leave was granted by the Court on May 24, 2017 to these plans. The amended plans reduced the height and FSR and number of car bays and deleted the 'Soho' apartments with two commercial tenancies proposed instead fronting the highway. 4. The amended plans addressed the majority of the Council's concerns. However, concern remained in terms of solar access to a number of apartments, with the proposed fencing, and with car parking and access arrangements. The main remaining concern however, was the proposed amalgamation arrangements. 5. Prior to the hearing, planning experts were appointed by both parties and joint conferral of the experts was undertaken to address the remaining contentions. 6. At the commencement of the hearing, the Court viewed the site and surrounds and heard from one objector whose parents lived at the rear in Telfer Place and who had lodged one of the two submissions to the original application. His written submission had raised a number of amenity concerns however, at the hearing, the only concern raised was to ensure that the sewer and drainage infrastructure was adequate to cope with the additional development. 7. The Court was advised that, as a result of the conferral of the experts, there was agreement by the parties that, subject to some further amendments agreed to by the applicant and with the imposition of conditions sought by the Council, all aspects of the development were acceptable to the Council other than the amalgamation arrangement. 8. This included the fact that the building exceeded the maximum height permissible in the LEP. However, the clause 4.6 written request submitted by the applicant to justify this breach had been accepted by the Council as it was a consequence of a lower height in more sensitive locations adjoining neighbouring properties. 9. The Council was also satisfied that the existing sewer and drainage infrastructure could accommodate the development. 10. The applicant had provided the Council with valuation and offer documentation as required under DCP Control C4 to demonstrate that amalgamation with Telfer Place properties could not be achieved as they could not be acquired. 11. The applicant also provided the Council with an indicative development layout for a site comprising the four Telfer Place properties to demonstrate that these lots could still achieve the development outcome prescribed in the DCP as is required by Control C6. 12. As a key objective of the DCP controls for the Mays Hill Transitway Station Precinct is to provide alternate vehicular access for new development fronting the highway, and given the Telfer Place properties could not be obtained, the applicant instead acquired 4 Joyner Place to provide that access as 4 Joyner Place adjoins part of the rear boundary of 102 Great Western Highway. 13. The applicant argued that this alternate consolidation pattern was facilitated under DCP Control C5. Development controls could be satisfied (in terms of the development outcome) for the appeal site and for 6-8 Joyner Street which were otherwise required to be amalgamated with 4 Joyner Street under Figure 4(a). 14. The Council advised that the applicant had not provided the Council with an indicative development layout for a site comprising 6 and 8 Joyner Street to demonstrate that this site could still achieve the development outcome prescribed in the DCP without 4 Joyner Street, as is required by Control C6. Nor was valuation and offer documentation as required under DCP Control C4 provided to the Council to demonstrate that amalgamation with 6 and 8 Joyner Street could not be achieved. 15. The only issue remaining in the appeal was therefore the consolidation (amalgamation) aspect of the application. There were also disputed conditions of consent associated with the proposed pedestrian link adjoining the western boundary of the site. Submissions and evidence 1. Mr Jonathon Wood gave expert planning advice for the applicant and Mr Mitchell Drake for the Council. 2. Mr Wood noted that the intent of the amalgamation pattern in the DCP is to achieve a sufficient developable area of an amalgamated site in order for redevelopment to accord with the planning controls. It is also to avoid vehicular access from the highway by ensuring this access is instead from secondary streets. There is also a requirement for quality streetscapes, adequate levels of amenity and sufficient areas of open space and landscaping. Finally, the DCP requires a more continuous (wider) built form facing Great Western Highway. 3. Mr Wood argued that, if all of these objectives could be met by an alternative amalgamation pattern, then that pattern should be considered suitable. In this regard, he considered that the objectives of the DCP were satisfied by the alternative amalgamation pattern proposed. Vehicular access was from Joyner Street, and both the appeal site and 6-8 Joyner Street would be of a sufficient width to accommodate development and associated parking in accordance with the controls, including providing for a landscaped corridor along rear boundaries. In terms of the appeal site in particular, there was sufficient separation to adjoining properties in Telfer Place and extensive landscaping on the portion of the site comprising 4 Joyner Street for it to contribute to a landscaped setting along this portion of Joyner Street. 4. Furthermore, whilst 4 Joyner Street is zoned R4, the lots in Telfer Place required in the DCP to be amalgamated with the site were also zoned R4 so the change in zoning over part of the site did not have any material impact in terms of future character. 5. In relation to determining the ability of 6-8 Joyner Street to develop without amalgamating with 4 Joyner Street, Mr Wood considered the only core control to be met for an RFB on this site was a minimum frontage requirement under the DCP of 28 m. Amalgamating 6 and 8 Joyner Street would give a consolidated site with a frontage of some 30.24 m and an area of some 930 m². This would therefore meet the minimum frontage control required by the DCP indicating that the site would be suitable for redevelopment for a four storey RFB over basement parking compliant with relevant design controls subject to a carefully considered design. In addition, this alternate consolidated site continued to provide vehicular access from a street other than the highway. Therefore the lack of inclusion of 4 Joyner Street had no impact on the ability of 6-8 Joyner Street to redevelop as an alternate amalgamated site facilitating orderly and economic development noting the DCP enables alternate consolidation patterns to occur. 6. The Court was advised that the only reason the applicant had prepared an indicative design for the four properties in Telfer Place that could not be amalgamated with the appeal site was because of their unusual configuration. This resulted in a more difficult site to develop relative to 6-8 Joyner Street which was relatively rectilinear and readily developable. 7. Given compliance with the minimum frontage control was achieved, and noting the proposed site area and configuration, it was the applicant's position that there was no need for similar indicative designs for 6-8 Joyner Street to demonstrate it could be developed as an alternative consolidated site which met relevant development controls. 8. Directly referencing the DCP objectives at s 1.1 for both the appeal site and the revised consolidated site of 6-8 Joyner Street, Mr Wood noted that objectives O1 and O2 were met. Both alternate consolidated sites met the minimum required frontage so could adequately provide for basement parking and provide a consistent character and landscaped open space to the rear of the sites. Given both revised sites complied with frontage controls, objective O4 could be met by any future redevelopment providing quality streetscapes and amenity with the ability for appropriate passive surveillance, landscaping and open space. The development outcome would still achieve a continuous building form along the Great Western Highway as required by objective O5, and alternate vehicle access from a secondary street for properties facing Great Western Highway could be provided (objective O6). 9. Mr Drake argued that the use of the site fronting Joyner Street for essentially driveway access only was contrary to the character of the streetscape within the locality. It also constrained any built form on this part of the site. Whilst he accepted that the minimum frontage was achieved in the alternate consolidation arrangement proposed, he argued that the proposal is reliant on an atypical subdivision pattern for consistency. He claimed that dwelling yields would be reduced as a consequence in that, by removing the ability for 4 Joyner Street to be amalgamated with 6-8 Joyner Street as the DCP requires, it restricted the yield across the three properties. 10. The Council did not raise a contention in terms of compliance with objectives O4 or O5. In terms of objective O6, whilst noting that access would still occur from a secondary street, Mr Drake considered that this was at the expense of achieving other objectives and that residential development of 4 Joyner Street outweighed the benefits achieved by the use of the property for access only. 11. In evidence, Mr Drake argued that, as there is no information on what could happen on 6-8 Joyner Street, it was not possible for the Council to determine the impacts or, if those two properties were amalgamated, whether the site could be reasonably redeveloped. 12. It was noted that 10 Joyner Street comprises a relatively new two storey dwelling and this property was at the commencement of the R2 Low Density Residential zone. As a consequence, the Council argued that the redevelopment of 6-8 Joyner Street would need to provide for a transition in built form on its northern boundary to this dwelling further constraining the ability to reasonably redevelop 6-8 Joyner Street without 4 Joyner Street. 13. However, the applicant argued that the fact that 4 Joyner Street was being used for access, landscaping and communal open space only, meant that the development on the southern boundary of 6-8 Joyner Street did not have to address building separation or amenity issues, such as overshadowing of dwellings, on its southern boundary. This was, therefore, a positive outcome for the development of 6-8 Joyner Street noting that there was a seven storey development already approved at 2-2A Joyner Street. 14. Finally, there was a disagreement over proposed conditions of consent dealing with the proposed public accessway (pedestrian path/link) along the western boundary. I will deal with these contested conditions following my findings on the application as they do not relate to the merits of the development, per se. Findings 1. The only remaining contention in this appeal in terms of the development was whether or not the amalgamation pattern required by the DCP should be varied to permit the development given the applicant could not acquire properties in Telfer Place to effect the amalgamation proposed in the DCP. Instead alternative access is proposed via a property in Joyner Street given access to the highway is not permitted by the DCP. 2. The Council agreed that the DCP allows for alternative amalgamation pattern where properties cannot be acquired and subject to demonstration that an appropriate development outcome will still result. The issue was, in essence, that there had not been an indicative sketch prepared to demonstrate that, without the inclusion of 4 Joyner Street, 6-8 Joyner Street could reasonably be redeveloped as an alternate smaller amalgamated site. 3. The applicant argued that there was no need for such a sketch. The combined site of 6-8 Joyner Street without No. 4 still met the core control for RFB redevelopment, being a width of more than 28 m, and had a reasonable area so there could be no doubt that it could be redeveloped for an RFB in accordance with the applicable design controls. 4. Having reviewed the evidence, I agree with the applicant that there is no justification for the Council to oppose the amalgamation pattern proposed. The Council has accepted that the applicant couldn't reasonably acquire the properties in Telfer Place to effect the amalgamation as outlined in the DCP. The applicant has therefore instead sought to meet the key objective of the DCP of not providing vehicular access from their development to the highway by securing the only alternative access available which is through 4 Joyner Street given 2 and 2A Joyner Street have already been approved for redevelopment and are not available to the applicant. 5. I also agree with the applicant that there is some benefit in 4 Joyner Street not being redeveloped for residential purposes but instead comprising communal open space, landscaping and access only. This will allow a reduced setback in any redevelopment of 6-8 Joyner Street from its southern boundary and enable a greater setback away and transition from the single dwellings in the R2 zone to the north. 6. Given the combined size of 6-8 Joyner Street at some 930 m² and a frontage of over 30 m, and the prospect of a reduced southern side setback to a largely landscaped site, it would seem self-evident that the property could be reasonably redeveloped in accordance with the intended future character of the area and in the form of development envisaged for this site. 7. I also do not think it is reasonable that the applicant should have to provide evidence of attempts to purchase 6 and 8 Joyner Street to amalgamate with the balance of their site. It was not intended that such a large amalgamated site be created as would result if the properties were included in the development. However, the applicant requested that the Court allow the opportunity to seek to acquire these properties if that became a determinative matter in this appeal. In my view it is not. 8. The applicant modified the application to be in a form that satisfied the Council other than in terms of the amalgamation issue and reasonably has addressed the concerns of adjoining residents, to the extent that they are valid. The required future pedestrian link to Telfer Place is provided for, there is no vehicular access to the highway, and activation of the highway frontage is proposed with commercial premises. The FSR and height satisfy the Council and there are no adverse amenity impacts on neighbours in terms of privacy, overshadowing or the like. I also do not accept that there will be adverse streetscape outcomes for Joyner Street given the development fronting Joyner Street will comprise landscaping, access and communal open space. 9. I have therefore determined that the appeal should be upheld and the development application, as amended, approved subject to conditions. 10. In terms of the conditions, those proposed by the Council were all agreed to by the applicant other than those relating to a Right of Footway which aligns with the location of the required pedestrian link/path to Telfer Place referred to in the DCP. These comprise proposed conditions 2A(d), 48, 119 and 181. 11. Condition 48 requires a plan of how the path is to be paved and 2A(d) a plan showing details of the proposed path lighting. Condition 119 then requires that the provision, construction and ongoing maintenance of the path be the responsibility of the property owner whilst condition 181 requires the path to be maintained in perpetuity with the costs of maintenance and cleaning borne by the owners of the development. 12. The applicant opposes these conditions. Whilst not objecting to providing the land for the path/pedestrian link, it is argued that the path should not be constructed or used until it is able to be continued through to Telfer Place once 10 Telfer Place, on which the northern portion of the path is located, is redeveloped. Otherwise it is a pedestrian path to nowhere. The applicant consider this would unnecessarily create a high risk environment for users of the path. 13. Furthermore, it is argued that, as the path is intended as a public thoroughfare, it should properly be in the control of and maintained by a public authority, namely the Council. The applicant therefore objects to physically carrying out work in the path arguing the path is unrelated to the development and suits a broader public purpose namely facilitating access from Great Western Highway to Telfer Place for users not confined to those within the development. 14. I agree with the applicant that, whilst providing the land for the pedestrian link should reasonably be required as part of the consent, the provision of the path should not occur until the path can be continued through to Telfer Place once 10 Telfer Place is redeveloped. There is little utility and potentially adverse risk in constructing the path to lead only to the rear of 10 Telfer Place and to not continue through to Telfer Place. There is also no certainty that 10 Telfer Place will ever be redeveloped. If it is not, then the intent of the path as a through pedestrian link between Telfer Place and Great Western Highway will never be achieved if it is reliant on the redevelopment of 10 Telfer Place. 15. Accordingly, I have deleted the aspects of the proposed conditions objected to by the applicant, namely conditions 2A(d), 48 and 180, renumbered the conditions accordingly, and amended condition 119 (now condition 118) to require provision of the land for the path only. The condition now reads as follows: Right of Footway 1. A Right of Footway measuring a minimum 4m wide and determined in height and in depth from the top of the basement slab below to the underside of the slab to the balcony above, benefitting the public/Council is required over the designated pedestrian link between the Great Western Highway and the rear boundary of 10 Telfer Place to allow for unobstructed public pedestrian access at all times in the future once the pedestrian link is constructed. The Right of Footway is not to be registered until the registration of the easement over 10 Telfer Place which allows the continuation of the path to Telfer Place. Documents relative to the creation of such shall be lodged with the Council prior to issue of the Occupation Certificate. All costs associated with the creation of the Right of Pathway shall be borne by the applicant. Orders 1. The orders of the Court are: 1. The appeal is upheld. 1. Development Application DA 2016/269 for demolition of existing structures, consolidation of lots and construction of a shop top housing development at 102-108 Great Western Highway and 4 Joyner Street, Westmead is approved subject to the conditions set out in Annexure "A". 2. The exhibits, other than Exhibits A and 2, are returned. ………………………... Jenny Smithson Commissioner 369762.16 Smithson (Annexure A) (451 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: 09 May 2018