Land and Environment Court New South Wales Medium Neutral Citation: Epping Surgery Centre Property Pty Ltd v City of Parramatta Council [2018] NSWLEC 1164 Hearing dates: 1 March 2018 Date of orders: 04 April 2018 Decision date: 04 April 2018 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The appeal is dismissed. (2) Development application DA 615/2017 for the demolition of existing structures and construction of a two storey building to serve as a day surgery facility with associated parking is determined by refusal. (3) The exhibits are returned, with the exception of Exhibits D and 7. Catchwords: Development Application: day surgery in an R2 Low Density Residential zone; cl4.6 request to vary floor space ratio development standard; amenity impacts on residential neighbours; public interest. Legislation Cited: Parramatta Local Environment Plan 2011 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 Texts Cited: Parramatta Development Control Plan 2011 Category: Principal judgment Parties: Epping Surgery Centre Property Pty Ltd (Applicant) City of Parramatta Council (Respondent) Representation: Solicitors: Mr G. McKee, McKees Legal Solutions (Applicant) Ms K. Law, Matthews Folbigg Pty Ltd (Respondent) File Number(s): 2017/312172 Publication restriction: Nil Judgment Background 1. COMMISSIONER: Epping Surgery Centre Property Pty Ltd (the Applicant) has appealed the deemed refusal by City of Parramatta Council (the Respondent) of its development application DA 615/2107 for the demolition of existing structures and the construction of a two (2) storey building to serve as a day surgery facility along with associated parking for cars and an ambulance bay at 34 Boronia Avenue, Epping. 2. The appeal comes to the Court pursuant to section 97(1)(b) of the Environmental Planning and Assessment Act 1979 (EP&A Act). 3. The Subject Site is formally identified as Lot 18 in DP 8514, and is currently occupied by a single dwelling house and ancillary structures. 4. The appeal was not the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act). 5. An inspection of the Subject Site was undertaken as part of the conciliation conference, during which submissions were received from the following individuals. 1. Ms Kylie Kellett, a resident of an adjoining property on Midson Road, Epping, who raised the following issues: 1. the potential for the proposed development to increase traffic in the local area; 2. the bulk and scale of the proposed two storey development, including a FSR exceedance, which she said was an inappropriate replacement for a single storey residential dwelling; 3. the commercial nature of the proposed development and its inconsistency with the surrounding residential dwellings; 4. the potential overshadowing impacts of the proposed development on her property; 5. the need for the removal of trees on the Subject Site to facilitate construction of the proposed development; 6. the impact of the Applicant's proposed tree removal on the privacy available to her from within her property. 1. Ms Bronwyn Best, a resident of Boronia Avenue, Epping, who raised the following issues: 1. the potential for the proposed development to increase traffic in the local area, with consequent associated safety risks, including an increased risk to young pedestrians in the area; 2. the potential for the proposed development to reduce on-street parking availability in Boronia Avenue and consequent negative business impacts on the commercial properties in the neighbourhood centre on the opposite side of Boronia Avenue; 3. the cumulative impact of increased demand for on-street parking due to the proposed development and the use of Boronia Avenue for parking by commuters utilising Epping rail station; 4. the bulk and scale of the proposed development; 5. the impact of the proposed development on trees within the Subject Site which the Applicant proposed for removal. 1. Ms Lyn Chan, a resident of Boronia Avenue, Epping, who raised the following issues: 1. the potential for the proposed development to increase traffic in the local area, and the potential for this to elevate safety risks in the street associated with the frequent passage of a State Transit bus along Boronia Avenue; 2. the bulk and scale of the proposed development; 3. the loss of trees on the Subject Site due to the proposed development; 4. the loss of privacy due to overlooking into the rear of her property from the proposed development. 1. Ms Julia Beatrice and Mr Michael Norton-Taylor, residents of Wyralla Avenue, Epping, who raised the following issues: 1. overshadowing impacts from the proposed development into their property at the rear of the Subject Site and the consequent loss of solar access; 2. view impacts from the rear of their property towards the rear of the proposed development; 3. the potential for noise impacts to arise from the proposed development due to the location and use of air conditioning mechanical plant associated with the proposed development; 4. a loss of privacy within their rear yard, including a pool area, due to the design of the proposed development. 1. Ms Elizabeth Este, a resident of an adjoining property on Midson Road, Epping, who raised the following issues: 1. the potential for the proposed development to increase traffic in the local area; 2. the bulk and scale of the proposed development compared to other developments in the residential neighbourhood; 3. the potential overshadowing impacts of the proposed development on her property; 4. a loss of privacy within her rear yard due to the design of the proposed development; 5. the potential for noise impacts to arise from the proposed development due to the location and use of air conditioning mechanical plant associated with the proposed development; 6. the potential for construction works to destabilise a large tree near her property's boundary with the Subject Site and the risk that the tree may fall into her property; 7. the potential for the proposed development to give rise to stormwater impacts on her property. 1. Mr Neil Witheridge, a resident of Wyralla Avenue, near the rear of the Subject Site, who raised the following issues: 1. the loss of visual amenity due to the proposed removal of trees on the Subject Site to facilitate construction of the proposed development; 2. the loss of birdlife in the local area due to the proposed removal of trees on the Subject Site. Statutory context Environmental Planning and Assessment Act 1979 1. The Environmental Planning and Assessment Act 1979 (EP&A Act) Section 79C(1) requires that in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.". 1. Section 79C(3A) Development Control Plans further provides that: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. Parramatta Local Environment Plan 2011 1. Development on the Subject Site is subject to the provisions of Parramatta Local Environment Plan 2011 (PLEP). Under LEP 2013 the Subject Site is zoned R2 Low Density Residential. 24 The objectives of the R2 zone are to: provide for the housing needs of the community within a low density residential environment. enable other land uses that provide facilities or services to meet the day to day needs of residents. ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment. allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods. 1. Day surgery, day procedures or health consulting rooms are defined to be a form of hospital under PLEP, which defines a hospital as: a building or place used for the purpose of providing professional health care services (such as preventative or convalescent care, diagnosis, medical or surgical treatment, psychiatric care or care for people with disabilities, or counselling services provided by health care professionals) to people admitted as in-patients (whether or not out-patients are also cared for or treated there), and includes ancillary facilities for (or that consist of) any of the following: (a) day surgery, day procedures or health consulting rooms, 1. As a consequence the proposed development is a permitted use under the R2 zoning of the Subject Site. 2. The following provisions of PLEP are also of relevance in this appeal: 1. clause 2.7, under which consent is also required for demolition works; 2. clause 4.3, which provides development standards for the height of buildings within the Parramatta City local government area (LGA). The objectives of this clause are: a) to nominate heights that will provide a transition in built form and land use intensity within the area covered by this Plan, b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development, c) to require the height of future buildings to have regard to heritage sites and their settings, d) to ensure the preservation of historic views, to reinforce and respect the existing character and scale of low density residential areas, e) to maintain satisfactory sky exposure and daylight to existing buildings within commercial centres, to the sides and rear of tower forms and to key areas of the public domain, including parks, streets and lanes. 1. The proposed development is compliant with the height development standard provided under cl4.3 of PLEP, and no height contention was identified by the Respondent in its statement of facts and contentions. 1. clause 4.4, which provides development standards for floor space ratio (FSR) within the Parramatta City LGA. The objectives of this clause are: a) to regulate density of development and generation of vehicular and pedestrian traffic, b) to provide a transition in built form and land use intensity within the area covered by this Plan, c) to require the bulk and scale of future buildings to have regard to heritage sites and their settings, d) to reinforce and respect the existing character and scale of low density residential areas. 1. The proposed development is not compliant with the FSR development standard in cl4.4 of PLEP. 1. Notwithstanding the non-compliance of the proposed development with the FSR development standards of PLEP, cl4.6 of PLEP provides for circumstances in which exceptions may be sought to development standards. 2. The objectives of cl4.6 of PLEP are: (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. 1. Cl4.6(2) of PLEP provides that: (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. 1. Cl.4.6(3) of PLEP provides that: (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. 1. The Applicant has submitted a written request under cl4.6 of PLEP to vary the FSR development standard applicable to the Subject Site under cl4.4 of PLEP. 2. In considering a written request made under cl4.6, the provisions of cl4.6(4) and cl4.6(5) are relevant. These are: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Director-General has been obtained. (5) In deciding whether to grant concurrence, the Director-General must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Director-General before granting concurrence. 1. Clause 4.6 of PLEP operates as a precondition to the exercise of power to grant consent and unless a consent authority must be satisfied that the precondition has been met or consent cannot be granted to the Applicant's proposed development. Parramatta Development Control Plan 2011 1. Development on the Subject Site is subject to the provisions of Parramatta Development Control Plan 2011 (PDCP2011). 2. The following provisions of PLEP are of particular relevance in this appeal: 1. Part 3, and specifically: 1. Table 3.1.3.1, which provides guidance in relation to setbacks, landscaped areas and deep soil zones applicable to the proposed development; 2. Part 3.2 Building Form and Massing, which provides objectives and design principles/controls concerning height, bulk and scale of buildings. 3. Part 3.6 Movement and Circulation, which provides objectives, and design principles/controls concerning traffic and parking. Should the Court uphold the Applicant's cl4.6 request to vary the FSR development standard under cl4.4 of PLEP? 1. As noted at [18], cl4.6 of PLEP operates as a precondition to the exercise of power to grant consent, and the Court must be satisfied that the precondition has been met in order for consent to be granted to the Applicant's proposed development 2. The Applicant has submitted a cl4.6 written request to vary the FSR development standard under cl4.4 of PLEP. This request was prepared by Planning Ingenuity and was tendered as evidence at the hearing. 3. The FSR development control in cl4.4 of PLEP is not a development standard that is expressly excluded from the operation of cl4.6(2), and so the Applicant's written request to vary this standard can be considered in this appeal. 4. In assessing the Applicant's cl4.6 request, I will first summarise the requirements for the consent authority's consideration of these requests, which also apply to the Court on appeal. Requirements for consideration of cl4.6 requests 1. Under cl.4.6(3) of PLEP, a consent authority must not grant consent unless the consent authority has considered a written request from the Applicant seeking to justify the contravention of the development standard by demonstrating: 1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and 2. that there are sufficient environmental planning grounds to justify contravening the standard. 1. In addition, under cl4.6(4) of PLEP, the consent authority must also be satisfied that: 1. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for the development within the zone in which the development is proposed to be carried out. 1. In assessing whether compliance with the standard is unreasonable or unnecessary, it is appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 (Wehbe) in which His Honour identified five pathways that could be applied to establish whether compliance is unreasonable or unnecessary. 2. These are to establish that: 1. compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable; 4. the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable; 5. "the zoning of particular land" was "unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary". Consideration of the Applicant's cl4.6 request to vary the FSR development standard. 1. Under the provisions of cl4.4 of PLEP, developments on the Subject Site cannot exceed a FSR of 0.5:1. The proposed development has an FSR of 0.56:1, representing a variation of 53m2 or 12%. 2. During the hearing the Applicant submitted that the additional FSR was required because the proposed day surgery facility must meet certain operational design standards. These are primarily based on the requirements of Australasian Health Facilities Guidelines (the Guidelines) produced by the Australasian Health Infrastructure Alliance (AHIA). These Guidelines were tendered as evidence during the hearing. 3. The Applicant's cl4.6 request submitted that the proposed development was in keeping with the existing character and form of development in the immediate area, having regard to the fact that those developments occur within a R2 Low Density Residential zone. 4. The Applicant's cl4.6 request was the subject joint testimony of town planning experts Mr Jeffrey Mead, for the Applicant, and Mr Steven Chong, for the Respondent. Is compliance with the development standard unreasonable or unnecessary because the relevant objectives of the development standard are achieved notwithstanding non-compliance with the standard? 1. The cl4.6 request said that compliance with the development standard is unreasonable or unnecessary because the relevant objectives of the development standard are achieved notwithstanding non-compliance with the standard. 2. In this regard, the Applicant's cl4.6 request had identified, and I agree, that the relevant objectives of the standard for the purposes of the cl4.6 request are: (a) to regulate density of development and generation of vehicular and pedestrian traffic, (b) to provide a transition in built form and land use intensity within the area covered by this Plan, and (d) to reinforce and respect the existing character and scale of low density residential areas. 1. Within the Respondent's statement of facts and contentions, only objective (d) of these three objectives was identified as being in contention in this matter. Consequently, I will give initial consideration to the adequacy of the applicants 4.6 request in relation to objective (d). 2. However, the requirements of cl4.6 of PLEP are that I give consideration as to whether the 'objectives of the development standard are achieved notwithstanding non-compliance with the standard', and it does not provide that my considerations should be limited only to those objectives raised as contentions by the Respondent. 3. Consequently, I will also give consideration to objectives (a) and (b), as these were addressed within the cl4.6 request prepared by the Applicant. 4. In relation to objective (d), the Applicant's cl4.6 request said that the external design and appearance of the building had been revised to achieve a character which was comparable to the existing character and scale of the residential streetscape and the low density residential nature of the land to the west, south and east of the Subject Site. 5. The cl4.6 request noted that residential development to the west, north and south of the Subject Site is characterised by one and two storey residential buildings, along with some dual occupancies, all in detached building forms. 6. The cl4.6 request also said that the proposed two storey building form of the proposed development, along with the hipped pitched roof, garage doors and an entry design, were all consistent with a contemporary two storey dwelling presentation. 7. In their testimony, and in their joint report tendered as evidence in the hearing, the planning experts differed in their view as to whether the proposed development would achieve objective (d) of the FSR development standard. 8. Mr Chong was of the view that the Applicant had not demonstrated that the Subject Site was of typical size and configuration for the area. He said that, as a consequence, the Subject Site did not exhibit any physical constraints that would present an impediment to a compliant development being located on the site, consistent with the controls applicable to it. 9. Mr Chong said that, in his opinion, there was no public benefit to be gained in approving a development that included an exceedance of the FSR development standard applicable to it. 10. Mr Chong said that because there was no impediment to achieving a compliant development on the Subject Site, it had not been demonstrated that compliance with the FSR development standard was unreasonable or unnecessary in the circumstances of this case. 11. In the joint report, Mr Chong had also said that, as a consequence of its design having to respond to the operational requirements of the Guidelines, the design of the proposed development had 'poor architectural merit' and presented as a 'typical industrial building'. 12. Mr Mead confirmed in his testimony that the proposed development is oversized compared to a building that would be constructed for residential use on the Subject Site. Mr Mead said that the proposed development's exceedance of the FSR development standard was justified as the Applicant was required to meet the operational requirements under the Guidelines referred to above at [30], notably to meet car parking, corridor width and other functional requirements under those Guidelines. 13. Having reviewed the plans for the proposed development, and having given consideration to the expert testimony of the town planners, I favour the position of Mr Chong in relation to this point, and agree with him that the proposed development does not achieve objective (d) of the development standard, and does not reinforce and respect the existing character and scale of the low density residential area in which it is located. In particular, I am of this opinion because: 1. notwithstanding its general street front presentation to Boronia Avenue, the proposed building would be oversized compared to a building that would be constructed on the site for residential use. This was confirmed in evidence by Mr Mead. Notwithstanding the Applicant's commercial and operational requirements for a day surgery facility which, as noted by Mr Chong and Mr Mead, have been significant considerations in the design of the proposed development, I have concluded that its scale would be such that it would not reinforce and respect the existing character and scale of the surrounding residential area. 2. In relation to the point above at [(1)], and based on the perspective gained from the site view at the commencement of the hearing, I assess that this would be particularly evident from the rear and side elevations of the proposed development. The perspectives would be observed from the rear private open space of the adjoining residential dwellings. I would note that objective (d) of the FSR development standard does not require that developments should reinforce and respect the existing character and scale of the surrounding residential area only from its street front perspective. 3. Additionally, the proposed development is for a medical facility and in my assessment it would be recognisable as such from its street frontage. Of particular note in this regard would be the location of an ambulance bay in the front street setback to Boronia Avenue. 1. I note that the majority of the submissions of the objectors in this matter also noted that the bulk and scale of the proposed development was, in their view, not in keeping with the bulk and scale of the surrounding residential dwellings in Boronia Avenue, Midson Road and Wyralla Avenue. 2. As a consequence of the above I have concluded, contrary to the Applicant's to cl4.6 request, that the proposed development would not achieve objective (d) of the FSR development standard in cl4.4 of PLEP. 3. As noted above at [35] to [37], although objectives (a) and (b) of cl4.4 of PLEP were not identified within the Respondent's statement of facts and contentions as matters in contention between the Parties, the Applicant's cl4.6 request did give consideration to both these objectives in relation to its request to vary the FSR development standard and they were the subject of evidence during the hearing. 4. In relation to objective (a) of the FSR development standard, the Applicant's cl4.6 request said that the vehicular and pedestrian traffic generated by the development would be appropriate to the scale and operation of a small medical practice in a low density urban area, and adjacent to a neighbourhood centre. The request noted that parking would be provided on site for eight (8) cars and that this level of parking was assessed as appropriate to the development application within a traffic and parking assessment report prepared on behalf of the Applicant. 5. The Applicant noted that the traffic and parking assessment report had also demonstrated that the provisions made within the plans for vehicle access, on-site parking and manoeuvring, and for the ambulance bay, were safe, compliant with all relevant standards and would have no detrimental impact to the safe and efficient function of the local road and footpath network. 6. For these reasons, the Applicant's cl4.6 request concluded that the proposed development was consistent with the objective (a) of the FSR standard. 7. Having considered the Applicant's submission in relation to objective (a), I agree with the Applicant that the proposed development is consistent with the achievement of objective (a) of cl4.4 of PLEP. 8. In relation to objective (b) of the FSR development standard, the Applicant's cl4.6 request said that the additional floor space, 53m2 above the maximum permissible area under the FSR development standard, would not contribute to an increased intensity of development on the site and would not result in a built form that was incongruent with the setting. 9. The cl4.6 request contended that the proposed development was consistent with the two storey residential form of dwellings to the west, north and south of the Subject Site, and that it provided a suitable transition between the residential character of the area to the west and south of the site, and the commercial and mixed use character of the neighbourhood centre immediately north-east of the Subject Site. 10. The cl4.6 request also said that the intensity of land use that would result from the proposed development would not be out of character with that established in the immediate locality. It noted that: 1. immediately to the north-east of the Subject Site is a neighbourhood centre with a variety of small-scale retail and service premises and shop top housing; and 2. the traffic and pedestrian/vehicle movements that would be generated by the proposed development would be typical of that local centre, which it noted attracted daily customers. 1. Whether the proposed development would achieve objective (b) of the FSR development standard was the subject of evidence from the expert town planners, Mr Mead and Mr Chong, both during the hearing and in their joint report. 2. Mr Chong said that the Subject Site was not located in a transitional zone between the Midson Road neighbourhood centre, which is located in an area zoned B1 Mixed Use, and its own R2 Low Density Residential zoning. He said that, as a consequence, he was of opinion that the proposed development did not provide for a transition in building forms between various zonings in the area of the Subject Site. 3. n his evidence during the hearing, Mr Mead acknowledged that the Subject Site was not in a transitional zone but said that the site was adjacent to a neighbourhood centre zoned B1, and consequently the proposed development could be viewed as facilitating a transition from the commercial activities and the built forms within the B1 zone and the land and the built forms within the R2 zoned land surrounding the Subject Site. 4. Having reviewed the plans for the proposed development, and having given consideration to the expert testimony of the town planners, I favour the position of Mr Chong in relation to this point and agree with him that: 1. the design of the proposed development does not, in my assessment, provide a transition between the B1 zone and the R2 dwellings which surround the Subject Site, because: 1. it sits squarely within the R2 zone as it is located: 1. between two residential dwellings on each side and with a residential dwelling to its rear; and 2. opposite a lot on Boronia Avenue which is also zoned R2 Low Density Residential and which is occupied by a single story residential dwelling style building from which a general practitioner medical centre operates; 1. the neighbourhood centre is located to the east of the medical practice and the north east of the Subject Site. In these circumstances the Subject Site is not located such as to provide a transition between the B1 and R2 zones; 2. the scale of the proposed development is greater in size than would be expected of a building on the Subject Site based on the FSR development standard in PLEP . Consequently, it is likely to stand in contrast to the surrounding residential developments and be clearly identifiable as commercial premises within a residential zone; 1. the Subject Site is not within a zone that provides for a transition in built form from the local centre across Boronia Avenue zoned B1 to the residential area surrounding the Subject Site. 1. Consequently, I have concluded, contrary to the Applicants to cl4.6 request, that the proposed development would not achieve objective (b) of the FSR development standard under cl4.4 of PLEP. 2. In summary, I find that objectives (d) and (b) of the development standard are not achieved notwithstanding non-compliance with the standard sought under the Applicant's cl4.6 request. Are there sufficient environmental planning grounds to justify contravening the standard? 1. The Applicant's cl4.6 request also said that the proposed breach of the FSR development standard in PLEP should be supported as there were sufficient environmental planning grounds to justify the contravention of the development standard for the following reasons: 1. there is an absence of significant impacts of the proposed non-compliance on the amenity of neighbours on the character of the locality; 2. the location of the waste storage areas within the building envelope make them readily accessible for servicing by private contractors and does not detract from the external appearance of the building; 3. the design of the proposed development with respect to vehicle and pedestrian movement into the site via Boronia Avenue, and the absence of active use of the rear and side setback areas adjoining neighbouring properties, would maintain the amenity of neighbours; 4. the hours and days of operation of the proposed development would be confined to times when adjoining dwellings are least likely to be occupied, and conversely the premises would not operate in the evenings, early mornings or weekends when adjoining developments would be occupied; 5. the design of the proposed development does not give rise to privacy impacts on the neighbouring residential developments. 1. While all of these points have merit in relation to the design of the proposed development, they are outcomes arising from the mitigation of potential impacts of the proposed development, and as such do not provide a planning reason for the proposed exceedance of the FSR development standard in my assessment. 2. The Applicant's cl4.6 request noted that the internal floor plate of the premises is determined by requirements set by the Australasian Health Facility Guidelines, the requirements of Australian Standard 1428 (Design for access and mobility), the Access to Premises Code for provision of access for disabled persons, and the Building Code of Australia. 3. Whilst I accept that these are factors that the Applicant has had to address in reaching the final design of the proposed development, I have concluded that these requirements could also be achieved on an appropriately sized lot and without the requirement for an exceedance of the FSR development standard as is proposed here. 4. I note that the Applicant did submit that it had made significant efforts over an extended period to identify a suitable location for the proposed day surgery facility. I also acknowledge the Applicant's submission that its decision to seek consent for the proposed development on the Subject Site had been made only at the conclusion of those efforts, and after it had formed a view that the Subject Site represented the most appropriate location for the proposed day surgery facility. 5. Notwithstanding this submission, my assessment is that this does not provide sufficient environmental planning grounds to justify contravening the FSR standard. 6. The Applicant also said that requiring strict compliance with the FSR control would have no benefit on the streetscape presentation or neighbour amenity. However as noted above at [5], it was the submission of the owners and residents of neighbouring dwellings that the bulk and scale of the proposed development would impact on their amenity. 7. In my assessment, a compliant development with respect to the FSR development control would have a benefit with respect to the amenity of neighbours at the rear and on each side of the Subject Site. 8. In conclusion, and based on the above, I am not satisfied that there are sufficient environmental planning grounds to justify varying the FSR development standard applicable to the Subject Site under cl4.4 of PLEP. 9. On the basis of my conclusions at [62] and [72], I find that the requirements of cl4.6(3) of PLEP are not met by the Applicant's cl4.6 request to vary the FSR development standard in cl4.4 of PLEP. Is the proposed development consistent with the objectives for development within the zone in which the development is proposed to be carried out? 1. In addition to requiring that a consent authority must be satisfied that the proposed development is consistent with the objectives of the particular standard, cl4.6(4) of PLEP also requires the consent authority must also be satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out. 2. The Applicant's cl 4.6 request had submitted that proposed development was consistent with the objectives of the R2 zone in which the development is proposed to be carried out. 3. These objectives were identified above at [8], and most relevantly include the following two objectives: * To enable other land uses that provide facilities or services to meet the day to day needs of residents. * To ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment. 1. The Applicant's cl4.6 request said that the proposed development was consistent with the objectives of the R2 zone because it would: 1. provide an additional healthcare facility in an appropriate location readily accessible to local residents and adjacent to an established neighbourhood centre to meet day to day needs of local residents, workers and visitors; 2. be compatible in design and layout with, and well integrated with, the surrounding neighbourhood and established character; 3. have a height, bulk and scale that is compatible with existing two storey dwellings with pitched roofs and would create a transition to the neighbourhood centre buildings to the north; 4. have minimal impact on the amenity of surrounding residential properties; 1. However, the Respondent submitted that: 1. the proposed day surgery facility did not serve the day-to-day needs of residents but would service more infrequent needs of a non-resident population drawn from a larger geographic, non-local, area; 2. the proposed development did not minimise impacts on the amenity within the low density residential environment in which it was located. 1. Having considered the evidence before me in this appeal, I favour the submission of the Respondent in relation to whether proposed development is consistent with the two objectives for development within the zone identified at [76]. 2. In relation to the first of the objectives, I agree with the Respondent that the proposed day surgery would provide services that would meet the more infrequent needs of a non-resident population drawn from a larger geographic, non-local, area rather than the day-to-day needs of residents. In my assessment, the day to day medical needs of residents are more likely to be met by the general practitioner medical centre opposite the Subject Site on Boronia Avenue. 3. Further, I agree with the respondent that a specialist day surgery centre is more likely to meet the less frequent needs of individuals drawn from a broader geographic catchment requiring more specialised medical treatment. 4. In relation to the second of the objectives, and as confirmed earlier in this judgment at [49], I have already concluded that the proposed development would not achieve objective (d) of the FSR development standard and so would not reinforce and respect the existing character and scale of low density residential areas. 5. I based this, in part, on my conclusion that the bulk and scale of the proposed development would be particularly evident from the rear and side elevations of the proposed development, and it would be observed from the rear private open space of the adjoining residential dwellings. I would also conclude from this that the proposed development would give rise to amenity impacts within the low density residential environment within which the proposed development is proposed be located. 6. This conclusion is consistent with the submissions of local objectors recorded earlier in this judgment at [5]. 7. Consequently, I also conclude that the proposed development is not consistent with the objectives for development within the R2 zone in which it is proposed to be located. Conclusion in relation to the Applicant's cl4.6 request 1. Having reviewed the Applicant's plans, considered the evidence before me, and given consideration to the Applicant's cl4.6 request, I am not satisfied the proposed exceedance of the FSR development standard sought by the Applicant would be in the public interest because: 1. it does not achieve the objectives of the FSR development standard in cl4.4 of PLEP; and 2. there are insufficient environmental planning grounds to justify varying the FSR development standard; and 3. it is not consistent with the objectives for development within the R2 zone in which it is proposed to be carried out. 1. As a consequence, I conclude that the Applicant's cl4.6 request to vary the FSR development standard applicable to the Subject Site under the provisions of cl4.4 of PLEP is not well founded and should not be upheld. Conclusion 1. Based on my findings and conclusions at [86] and [87] above, I also conclude that: 1. the remaining contentions in this appeal need not be considered as the Applicant's cl4.6 request to vary the FSR development standard in PLEP, which is a precondition to the exercise of power to grant consent to the application, has not been upheld; 2. the appeal should be dismissed. Orders 1. The Court orders that: 1. The appeal is dismissed; 2. The Applicant's development application DA 615/2017 for the demolition of existing structures and construction of a two storey building to serve as a day surgery facility with associated parking is determined by refusal; 3. The exhibits are returned with the exception of Exhibits D and 7. …………………………. Michael Chilcott Commissioner ********** 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 April 2018