Land and Environment Court New South Wales Medium Neutral Citation: Hunt Lane Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1001 Hearing dates: 17 and 18 October, 9, 27 and 30 November, and 14 December 2017 Date of orders: 04 January 2018 Decision date: 04 January 2018 Jurisdiction: Class 1 Before: Smithson C Decision: 1) The appeals are upheld. 2) Development applications 594/2016 and 595/2016, as amended, for mixed use developments over various lots in Canterbury Road, Lakemba are approved subject to the conditions set out in Annexures "A" and "B" respectively. 3) The applicant is to pay the respondent's reasonable costs under s.97B of the Environmental Planning and Assessment Act 1979 for assessment of the amendments to the applications, as agreed or assessed. 4) The exhibits, other than Exhibits 2, 3, J and K, are returned. Catchwords: DEVELOPMENT APPLICATION: Adjoining mixed use developments in same ownership separated by Council land used for drainage; site isolation; height and number of storeys; overdevelopment; bulk and scale; character; setbacks and building separation; design quality; traffic and parking Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Canterbury Local Environmental Plan 2012 State Environmental Planning Policy 65 Texts Cited: Canterbury Development Control Plan 2012 Apartment Design Guide Category: Principal judgment Parties: Hunt Lane Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: Ms Duggan, SC (Applicant) Mr Seton (Respondent) Solicitors: Conomos Legal (Applicant) Marsdens Law Group (Respondent) File Number(s): 2017/39266 and 2017/39296 Publication restriction: No Judgment 1. COMMISSIONER: Two appeals by the applicant were lodged under section 97(1)(b) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Canterbury-Bankstown Council (the Council) of development applications 594/2016 and 595/2016 (the applications). 2. The first application (594/2016), referred to as 'the mid-block development', is for the majority of the site which collectively comprises 22 essentially adjoining lots, being Lots 51 to 72 in DP 12455. The development has a street address of 821-855 Canterbury Road, Lakemba. 3. The second application (595/2016), referred to as 'the corner development', is for the balance of the site to the corner of Chapel Street, being properties known as 813-819 Canterbury Road, Lakemba. 4. The two proposed developments, and therefore the site, are separated by a parcel of land in the ownership of the Council, being Lot 294, totalling some 171m² in area and known as 819A Canterbury Road (the Council land). The Council land is used for drainage purposes and contains a pipeline 1.2m wide and 600mm high. There is an existing warehouse building which partly straddles the site and the Council land. However, the Council was not a party to either application with Lot 294 not included as part of the site. 5. The mid-block development, as amended prior to the hearing, proposed the demolition of all existing structures, consolidation of lots, and construction of a six storey mixed use development comprising three towers. The towers contained 6 commercial premises at ground level, 123 apartments and 3 levels of basement parking for 238 cars accessed off Hunt Lane. Landscaping and tree removal were also proposed. The application as lodged and originally notified was for a seven storey mixed use development with 150 apartments. 6. The corner development, as amended prior to the hearing, proposed demolition of all existing structures, consolidation of lots, and construction of a six storey mixed use development comprising a tower containing a commercial premises at the ground floor, 26 apartments and 3 levels of basement parking for 51 cars accessed off Hunt Lane. Landscaping was also proposed. The application as lodged and originally notified was for an eight storey mixed use development with 41 apartments. 7. The applications were each accompanied by an offer of a Voluntary Planning Agreement (VPA), proposed by the applicant under s 93F of the Act. The offer proposed in each VPA was to embellish Hunt Park and provide a pathway and landscaping over the Council land (Lot 294) in return for additional floor levels for each development. 8. The South Sydney Joint Regional Planning Panel was identified as the determining authority for the applications pursuant to Schedule 4A of the Act given the Council owned land on which works were proposed (demolition) and given the Capital Investment Values of the developments. 9. The issues contended by the Council as grounds for refusal were largely the same for both applications. Both developments exceeded the 18m height limit being up to 21.5m which was considered out of character with the area with avoidable bulk, scale and streetscape character impacts. The written requests lodged under clause 4.6 of the LEP were not considered adequate justification for the height exceedences sought with the Council arguing that it was in the public interest to maintain the height control. 10. Concerns were also raised in terms of the proposed setbacks to Canterbury Road, Hunt Lane and Hunt Park, and to residential development in the nearby R3 zones fronting Hunt Lane and Chapel Street. Building separation between the two developments and the impact on the intervening Council land was also raised as a concern. 11. The Council also contended that the developments would have a significant detrimental impact on traffic circulation in the area particularly on Hunt Lane and Chapel Street. 12. Finally, the Council contended that the developments would isolate the Council land (Lot 294) preventing that land being developed in the future. Construction and maintenance impacts on the pipeline situated within this land were also of concern. Furthermore, the Council had not given consent to the proposed demolition of the existing building partially located on the Council land. 13. For these reasons, approval of the applications was opposed as it would set an undesirable precedent and was not considered to be in the public interest. 14. In terms of the mid-block development, additional specific design concerns included joint entrances to commercial and residential areas, ground level commercial spaces below street level, excessive length of the building to both Canterbury Road and Hunt Lane, inadequate natural cross ventilation and over-reliance on a light well to provide adequate solar access to one of the towers. Design concerns were also raised in terms of meeting the principles of the Apartment Design Guide (ADG) and the requirements of State Environmental Planning Policy 65 (SEPP65) given the proposed setbacks, building separation and streetscape presentation. The resultant amenity impacts for residents and neighbours were those associated with solar access and overshadowing. Secondary concerns were the adequacy of open space areas, the proposed waste management, and required flood planning levels. 15. In terms of the corner development, additional specific design concerns included the reliance on opaque windows and privacy screens to minimise privacy impacts, inadequate setbacks to Chapel Street and lower scale residential properties in Chapel Street (and inadequate interface with and transition to these properties), and inadequate street frontage width with the DCP requiring a minimum of 30m but only 22.86m provided. Similar design issues to those raised for the mid-block development were cited including inadequate solar access, potential overshadowing of neighbours, inadequate separation of residential and commercial spaces, below street level commercial tenancies, and concerns with waste management and flood level compliance. Finally, there was concern about the useability of the communal open space. Planning context 1. The total site is regular in shape with a 102.13m frontage to Canterbury Road, a 102.13m rear frontage to Hunt Lane, and eastern and western boundaries of 38.10m. It is situated on the north western corner of Canterbury Road and Chapel Street, has a total area of 3,891.5m² and is generally level. 2. The site is zoned B5 - Business Development under the provisions of the Canterbury Local Environmental Plan 2012 (the LEP). Development for residential accommodation is permissible on the site under Schedule 1 of the LEP but only as part of a mixed use development. 3. North of the site, on the opposite side of Hunt Lane, is Hunt Park and a row of single and two storey dwellings situated in an R3 Medium Density Residential zone. There is also an R3 zone east of the site (east of Chapel Street) whilst other properties adjoining and opposite in Canterbury Road are zoned B5. 4. The objectives for development in the B5 zone under the LEP are: * To enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and that support the viability of, centres. * To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design. * To support urban renewal that encourages an increased use of public transport, walking and cycling. * To encourage employment opportunities on Canterbury Road and in accessible locations. 1. There are no floor space ratio controls which apply to the site under the LEP but there is a maximum height limit of 18 metres. Clause 4.3 of the LEP contains the following objectives in terms of the height of buildings: (a) to establish and maintain the desirable attributes and character of an area, (b) to minimise overshadowing and ensure there is a desired level of solar access and public open space, (c) to support building design that contributes positively to the streetscape and visual amenity of an area, (d) to reinforce important road frontages in specific localities. 1. Variations to the maximum permissible height can be granted providing the provisions of LEP cl 4.6 are met. Clause 4.6 enables flexibility to vary the standard providing a written request is lodged justifying the variation and the consent authority determines that maintaining the standard is found, in the circumstances, to be unnecessary or unreasonable and not in the public interest as the objectives of the zone and the standard are nevertheless met. 2. The applications were also subject to assessment under the Canterbury Development Control Plan 2012 (the DCP) which contains a number of provisions to control the development of land. Background to the appeals 1. The two applications initially proposed developments of a greater height, bulk, scale and density than those the subject of the hearing. These original applications were notified together. 2. In response, four submissions were received and a petition lodged against the mid-block development. Concerns were with the overdevelopment of the site, traffic congestion, overshadowing, privacy impacts, height, parking, and tree removal. In response to the corner development, three submissions and a petition were received raising similar concerns but also noise and adverse impact on property values. 3. In February 2017, the two appeals were filed with the Court against Council's deemed refusal of the applications. 4. Conciliation was not undertaken and the appeals were set down for hearing to commence on October 17, 2017. On 27 July, 2017, the applicant was granted leave to amend both applications and to rely on the amended plans and documentation. The amended applications were notified and two objections were received in response to each application. Resident Objections 1. The hearing commenced on site and the Court heard from five objectors from surrounding streets being residents of Wilson Avenue, Reginald Avenue and Chalmers Street. 2. Issues raised by the objectors onsite and in submissions were in essence against the form of development now permissible on the site and in this area of Canterbury Road since the area was rezoned in 2012. Concerns were in terms of the impact on the community, local character, local infrastructure, land values, safety for children, traffic and access, as well as the lack of onstreet parking. There was also a concern that cl 4.6 had been regularly used to allow higher development than the maximum 18m permissible in the zone. 3. Specific concerns common to both developments were in terms of: the height exceedences and use of cl 4.6; density; façade treatments; amenity impacts (including noise and overshadowing as well as overlooking from balconies, windows and the roof terraces); loss of trees and lack of green space; lack of demand for the commercial tenancies; limited capacity of Hunt Lane and the Canterbury Road/Chapel Street intersection; demolition and construction impacts; and potential changes to Hunt Park. The developments were seen to be overdevelopment on a busy thoroughfare. 4. One objector contended that the State Government was introducing a new building code for high rise development around railway stations which could result in development being limited to 4 storeys. He suggested that the determination of the applications should be deferred pending consideration of how such a policy may impact future development in the area. Amendments to the applications 1. Experts were appointed and conferred in response to the contentions raised. As a consequence, further modifications were undertaken to the applications and, at the commencement of the hearing, the Court was advised that a number of contentions were no longer pressed on the basis of these amendments, additional documentation or proposed conditions of consent. 2. The amendments reduced the number of storeys (therefore the height), the number of apartments and the commercial floor space, thus also reducing traffic generation. The experts also agreed that the updated cl 4.6 requests justified the minor height and storey non-compliances. 3. For both developments, the proposed amendments addressed the Council's requirements in terms of waste, traffic and other engineering matters, in particular with flood planning floor levels, provision of onsite stormwater detention, appropriate waste facilities, consolidated parking and access arrangements. This included treatments to Hunt Lane, namely its widening and the installation of a pathway, as well as parking controls for Chapel Street. 4. The amendments also addressed separation between the developments (subject to no development on the Council land), setbacks to Chapel Street and Canterbury Road, the amenity of the proposed communal open space, solar access, cross ventilation, and the design of below ground tenancies, including access to them. 5. The amended plans also resolved concerns with the mid-block development in terms of its length and reliance on a light well, as well as deep soil and landscaping provision. 6. The only remaining contentions were in terms of the proposed setbacks to Hunt Lane and the R3 residential zone (including transitioning to properties in the R3 zone) and the precedent and public interest implications, as well as the isolation of the Council land and the required owner's consent for the proposed demolition over this land. For the corner development, concern also remained with the width of the development site. 7. After hearing from objectors, viewing the site and surrounds, and hearing opening submissions on both appeals, I adjourned the hearing on the basis that the applications needed to address the Council land which separated the two developments and which the Council argued would be isolated by them. 8. In addressing the issues associated with the future use of the Council land, the parties advised the Court that all remaining issues contended by the Council could likely be resolved subject to further modifications to the developments. The hearing was adjourned and reconvened over a period of two months to enable the required modifications to be agreed between the parties. 9. In December, 2017 the hearing concluded as the parties advised the Court that all contended matters had been resolved to the satisfaction of the Council by further amendments to both applications or by proposed conditions of consent. Leave was sought and granted to amended plans and an updated joint report of the planning experts was filed advising how the Council contentions, and issues raised by objectors, had been resolved. 10. Critical to the Council no longer opposing the applications was the inclusion of the Council land (Lot 294) into the corner development. This resolved the Council and Court concerns relating to site isolation and separation between the developments. 11. The Council land is now proposed to retain a drainage function whilst being landscaped communal open space accessible from both of the proposed adjacent developments. 12. The design issues associated with the drainage function are proposed to be resolved by deferred conditions of consent for both applications which require details on the removal of the pipe and construction of a replacement culvert prior to the consents becoming operational. 13. A deferred commencement condition is also proposed on the corner development (DA/595/2016), which now incorporates the Council land, requiring a green wall with ground level planting to be incorporated into the façade of the land as viewed from Canterbury Road and as requested by the Council's experts. 14. For the mid-block development, the number of apartments was reduced to 97 and the number of parking bays to 199. For the corner development, the number of apartments was reduced to 23 and the number of parking bays to 47. The number of parking bays proposed in both applications will exceed the amount required by the DCP. In addition, car wash bays and loading bays are also provided. 15. Other modifications undertaken included removal of the roof terraces to both developments making the developments generally compliant with the height standard. The experts considered that the removal of the roof terraces (proposed as communal open space) would be acceptable given the developments are situated within a high density area. Under the ADG, a variation to the communal open space provision is acceptable where sites are in good proximity to public open space. Given Hunt Park is directly opposite the site, and is an extensive area of public open space, the experts considered that the park, as well as the provision of communal open space on the ground floor levels facing Hunt Lane, provided sufficient communal open space. They also noted that the removal of a loading dock off Hunt Lane, and the utilisation of this space with the Council land, provided additional communal open space. 16. To resolve the separation issues along Hunt Lane, the setbacks to Hunt Lane were amended for the corner development to be 12m up to 4 storeys and 15m for the fifth storey (12m to the edge of the balcony) 17. For the mid-block development, the following setbacks to Hunt Lane were agreed by the experts: Mid-Block Setbacks Block A 12m up to 4 storeys and 15m for the fifth storey to the main building (12m to edge of balcony). Block B 9m up to the fifth storey. Block C 9m up to the fifth storey. Block D 12m up to 4 storeys and 15m for the fifth storey to the main building (12m to edge of balcony). Note: Measured from the northern side of the laneway boundary. 1. Subject to agreed conditions requiring a one metre deep planter to be provided to the entire balcony edge to specific apartments in order to soften the edge and remove overlooking, the experts agreed that these proposed amended setbacks would offer a satisfactory transition to adjoining residential development and to the lane. 2. Conditions were also proposed to deal with a number of issues raised by objectors including requiring acoustic and air quality assessment reports which recommend measures to ameliorate air pollution and mitigate noise impacts, as well as a structural engineering plan outlining the proposed method of shoring during construction. There is a specific requirement to address the structural adequacy of 819A and 857-875 Canterbury Road. Waste management plans and controls on demolition are also required along with a construction traffic management plan. Communal areas are to be managed to restrict patron numbers and hours of use. 3. In addition, there is a proposed condition requiring dedication to the Council (free of cost) of part of the site to enable a one metre widening of Hunt Lane, its reconstruction, and construction of a footpath along its southern boundary. 4. Critical to the Court was that the Council land had been appropriately addressed rather than remaining as a sliver of land between two multi storey developments and not incorporated into either development. 5. It therefore only required for me to be satisfied as to the acceptability of the modified applications and in particular that due regard has been had to the issues raised by objectors. 6. Whilst the Council did not oppose approval to the applications as amended, costs were sought under s 97B of the Act on the basis that the amendments undertaken to the applications were not minor. Findings 1. The applications before the Court on the final hearing date were substantially modified to those which had been lodged, advertised and opposed by local residents and the Council. In particular, the developments evolved in collaboration between the applicant and the Council with the assistance of a number of experts.The Court required that the applications address the future use and development of the Council land located between them. Accordingly, the applications were modified to incorporate this land into the corner development retaining the drainage function of the land whilst enabling it to be enhanced with landscaping works as an additional area of open space for residents. 2. In addition, there were further modifications to the height of the developments which resulted in only minor height breaches which were justified in updated cl 4.6 requests. The loss of storeys from the original applications also resulted in reduced density with a significant reduction in the number of apartments, from 191 overall at lodgement to 120 in the final amended plans. There was also a reduction in commercial floor space and a resultant reduction in parking. As a consequence there will be reduced traffic. 3. I am satisfied, on the basis of the amended plans, that the applications as amended will have acceptable amenity impacts including acceptable overshadowing. The revised setbacks will provide an appropriate transition to adjoining residential dwellings and the deletion of the rooftop terraces and the provision of privacy screens will remove the overlooking concerns of neighbours and reduce noise emanating from the developments. 4. Resident concerns with the use of Hunt Lane and Chapel Street will be addressed, to the extent reasonable given the permissible development on the site, with the widening of Hunt Lane and provision of a footpath in it. There will also be restrictions imposed on the use of Chapel Street between the lane and Canterbury Road and onsite parking is provided in excess of Council requirements. 5. With the amended plans and the imposition of the conditions as proposed by the parties, the experts were of the view that the Court should be satisfied that there are no remaining grounds to refuse the applications, and that the developments are an appropriate response to the planning controls and the site context. I agree with this assessment. 6. I also note that conditions are agreed which deal with construction impacts to neighbouring buildings, acoustic impacts and air quality. There are also restricted hours and numbers for use of communal open space areas and appropriate communal open space and landscaping provided. 7. It is also the case that many of the resident concerns relate to the form, height and density of development now permissible in this section of Canterbury Road rather than with the individual developments proposed. Given the proposed developments in essence comply with those controls, and with the zone objectives, there is no substantive basis for the Court refusing the applications or deferring their determination. 8. On the basis of the extensive modifications undertaken to address objector concerns and the relevant controls applying to the site, the appeals are upheld and the development applications, as amended, conditionally approved. Orders 1. The orders of the Court are: 1. The appeals are upheld. 2. Development applications 594/2016 and 595/2016 for mixed use developments over various lots in Canterbury Road, Lakemba are approved subject to the conditions set out in Annexures "A" and "B" respectively. 3. The applicant is to pay the respondent's reasonable costs under s.97B of the Environmental Planning and Assessment Act 1979 for assessment of the amendments to the applications, as agreed or assessed. 4. The exhibits, other than Exhibits 2, 3, J and K, are returned. __________________ Jenny Smithson Commissioner of the Court Annexure A Annexure B ********** 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: 04 January 2018