Land and Environment Court New South Wales Medium Neutral Citation: Joseph v Sutherland Shire Council [2018] NSWLEC 1193 Hearing dates: 27, 28 March 2018 Date of orders: 08 May 2018 Decision date: 08 May 2018 Jurisdiction: Class 1 Before: Dickson C Decision: The orders of the Court are: (1) The applicant is granted leave to rely on amended plans; (2) No order as to costs; (3) The objection pursuant to cl 4.6 of the Sutherland Local Environmental Plan 2015 is upheld; (4) The appeal is upheld; (5) Consent is granted to Development Application No. DA17/0888 for demolition of existing structures and construction of a residential flat building containing nine units and basement parking at Lot 34, DP 8147, 21 Flide Street, Caringbah subject to conditions in Annexure A as amended by this judgement; (6) The exhibits are returned with the exception of Exhibit A, B, D and 5. Catchwords: DEVELOPMENT APPEAL: residential flat building – affordable rental housing – compatibility with existing and desired future character - variation to height standard - consistency with amalgamation plan for Caringbah Medical precinct – whether the amenity of the development is acceptable – whether the proposed development affects future development of adjoining sites – precedent Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Project Venture Developments Pty Ltd v Pittwater Council (2005) NSWLEC 91 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Mr John Rohan Joseph (First Applicant) Ms Melissa Joseph (Second Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: R O'Gorman Hughes (Respondent) Solicitors: G McKee, McKees Legal Solutions (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2017/298775 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal arising from the deemed refusal by Sutherland Shire Council of development application DA/17/00888. The application sought consent for construction of a residential flat building containing nine units and a basement parking level for six car spaces. The development is proposed at 21 Flide Street, Caringbah. 2. The matter proceeded directly to hearing. At the commencement of the hearing the Council confirmed that, subject to the imposition of agreed conditions, the previous contentions in relation to traffic, parking and stormwater management had been resolved by the parties. 3. At the commencement of the hearing the applicant sought leave to rely on a set of amended plans. The amended plans were tabled at the joint conference of the planners and were the subject of evidence from them. The Council raised no objection to the amended plans and leave was granted by the Court. 4. The parties agree that the amendments to the application are minor. Following a review of the amendments I am satisfied that the changes made to the plans are appropriately classified as minor (Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153; [2009] NSWLEC 153, Pepper J (at [42])) and no order as to costs under s8.15(3) of the Environmental Planning and Assessment Act 1979 (the Act) arises. 5. The Council maintains the application should be refused on the following grounds: 1. The development is inconsistent with the amalgamation pattern for the Caringbah Medical Precinct; 2. If approved the development would unreasonably limit the potential of adjoining properties to be developed in accordance with the Caringbah Medical Precinct plan and development incentives; 3. The development is incompatible with the desired future character of the precinct; 4. The requested variation to the maximum height standard should not be upheld as the development fails to achieve the objective that the scale of buildings is compatible with adjoining development and the desired future character. 5. The proposed development provides inadequate building setbacks to existing and potential future development on adjoining properties; 6. The development fails to provide adequate solar access, cross ventilation and communal open space for future residents of the development. The site and its context 1. The subject site is located on the north-eastern side of Flide Street. The site comprises a single allotment of land identified as No. 21 Flide Street Caringbah, having a legal description of Lot 34 in DP 8147. The site has a total site area of 603.9m² and a frontage of 15.24m. 2. The subject site is within 350m of Caringbah commercial centre and 400m to the train station to the south- east. The site is in proximity of Sutherland Hospital and Kareena Hospital. 3. Existing development within the locality consists of low density residential dwellings and some small scale villa and town house developments. Public Submissions 1. At the commencement of the Court proceedings members of the public addressed the Court. The following is a summary of issues raised in their oral submissions along with the issues canvassed in the written submissions received by the Council during the assessment of the application. 1. The development application demonstrates the development potential associated with a single allotment of land without the need to acquire adjoining sites and is supported by the resident. 2. The application will provide positive diversity of housing stock 3. The development is objected to as it is inconsistent with the requirements of the R4 Caringbah Medical Precinct and fails to provide adequate building separation, side setbacks or parking. 4. The street frontage of the subject site is too narrow to accommodate the proposed development and is inconsistent with Council's planning controls; 5. A three storey block of flats is out of character with the street and will not be consistent with the desired future character demonstrated by Council's planning intent for the precinct; 6. The development provides insufficient communal open space; 7. The property is part of a group of 8 properties on which an existing approval for redevelopment has been given. The approved redevelopment is inconsistent with the intent of the Caringbah Medical Precinct; 8. The provision of six parking spaces will be insufficient to service the units. Any on-street parking generated by the development cannot be accommodated on Flide Street due to its narrow width. 9. Development will result in overshadowing impacts to 19 Flide Street as well as loss of privacy to their yard, bathroom and dining room. 10. The development consists of 80% one bedroom apartments which does not meet the local demand for two and three bedroom apartments. 11. The development would thwart the intent of the amalgamation plan to allow access to the medical precinct from Flide Street and prohibit access from the Kingsway. 12. Concern that if single lot development is allowed to proceed in contravention of the amalgamation plan it will set a precedent which will allow all property owners in Flide Street to submit and have approved similar development applications for their properties without medical facilities and prevent all property owners on the Kingsway from ever developing their properties. 13. The development has the potential to impact on street trees and trees on adjoining properties. The proposed tree removal within the existing site is not supported. 14. The development will result in privacy impacts to the rear yard and residence at 396 Kingsway from the proposed rear balconies. (Exhibit 4 and Exhibit 9) 1. During the onsite view a number of residents also raised concern with the Court in relation to offers that had been received from the applicant who sought to amalgamate their properties into the development parcel. Whilst varied evidence was received from a number of residents in relation to comparative sales and their estimates of property value, the consistent theme was that residents felt the offers provided were below market value and their expectations. Planning Controls: 1. The application is made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The relevant aims of SEPP ARH are: … (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, … (d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing, … (f) to support local business centres by providing affordable rental housing for workers close to places of work, … 1. It is agreed between the parties that the development is within an "accessible area" as defined by SEPP ARH. 2. Clause 13 of SEPP ARH permits a bonus floor space in addition to that provided by the local environmental plan. The amount varies based on a percentage of gross floor area (GFA) to be used for the purposes of affordable rental housing. In these proceedings the proposal will include at least 32% of the total GFA as affordable rental housing. 3. Clause 15 and 16 of SEPPARH state that State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development (SEPP 65) and the Apartment Design Guide (ADG) contain the design requirements for affordable infill housing developments in the form of residential flat buildings. 4. Relevant to these proceedings Clause 16A states that 'the consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area'. Council argues that the development proposed is not compatible with the desired future character of the local area. 5. Sutherland Local Environmental Plan 2015 (LEP 2015) applies to the site. Pursuant to LEP 2015 the site is zoned R4 – High Density Residential Development. Development for the purposes of a residential flat building is permissible with consent. 6. The objectives of the R4 zone are: * To provide for the housing needs of the community within a high density residential environment. * To provide a variety of housing types within a high density residential environment. * To enable other land uses that provide facilities or services to meet the day to day needs of residents. * To encourage the supply of housing that meets the needs of the Sutherland Shire's population, particularly housing for older people and people with a disability. * To promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features. * To minimise the fragmentation of land that would prevent the achievement of high density residential development. 1. Pursuant to cl. 2.3(2) of LEP 2015 the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 2. Pursuant to cl Maximum Building Height mapped for the subject site is 9m. The objectives of the height standard are: (a) to ensure that the scale of buildings: (i) is compatible with adjoining development, and (ii) is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and (iii) complements any natural landscape setting of the buildings, (b) to allow reasonable daylight access to all buildings and the public domain, (c) to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion, (d) to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves, (e) to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings in those zones, (f) to achieve transitions in building scale from higher intensity employment and retail centres to surrounding residential areas. 1. The applicant seeks a variation to the height standard. LEP 2015, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances. However, consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed that matters required to be demonstrated by cl 4.6(3), namely: (a) 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. Whether the Court accepts the applicant's cl 4.6 variation request in relation to the variation of the maximum height of the development is a jurisdictional precondition to consent. 2. The subject site is within the bounds of the Caringbah Medical Precinct to which Clause 6.21 of LEP 2015 applies. The clause provides height and FSR incentives that apply when, amongst other criteria, the development contains a health services facility. The clause states: 6.21 Caringbah Medical Precinct (1) The objectives of this clause are as follows: (a) to create a mixed use development precinct that has health services facilities and residential accommodation located adjacent to the Sutherland Hospital and within walking distance of Caringbah Centre, (b) to provide employment opportunities and promote economic growth for Sutherland Shire through synergies with the existing medical facilities of Sutherland and Kareena Hospitals, (c) to be a catalyst for the revitalisation of Caringbah Centre, (d) to ensure that there are high quality areas of private and public domain, with deep soil setbacks for the planting of substantial landscaping including large scale indigenous trees which will complement the scale of buildings up to 6 storeys, particularly in the building setbacks adjacent to Kingsway, Caringbah, (e) to protect the amenity of the adjacent areas by providing a transition to adjacent 2-storey residential development, including reasonable setbacks from side and rear boundaries and the maintenance of a transitional scale of building height to Flide Street, Caringbah, (f) to improve safety and traffic flow by limiting vehicle access from Kingsway, Caringbah, to redevelopment sites. … (4) Despite clause 4.3 (2), the height of a building on land to which this clause applies may exceed the maximum height shown for the land on the Height of Buildings Map by an additional 11 metres if: (a) the building contains a health services facility, and (b) the building provides a transitional scale of building height to Flide Street, Caringbah, and (c) the building setbacks are sufficient for the deep soil planting of substantial landscaping, including large scale indigenous trees on Kingsway frontage at Caringbah. (5) Despite clause 4.4 (2), the maximum floor space ratio for a building on land to which this clause applies may exceed the maximum floor space ratio shown for the land on the Floor Space Ratio Map by an additional 1.45:1 if: (a) the building is on land identified as "Area 7" on the Floor Space Ratio Map, and (b) the building contains a health services facility, and (c) the building provides a transitional scale of building height to Flide Street, Caringbah, and (d) the building setbacks are sufficient for the deep soil planting of substantial landscaping, including large scale indigenous trees on Kingsway frontage at Caringbah. 1. Sutherland Shire Development Control Plan 2015 (DCP 2015) applies to the development. 2. Chapter 6 of DCP 2015 details the controls for development for the purposes of residential flat buildings. The relevant clauses of this chapter of DCP 2015 are provided below: 1. Streetscape and Building Form (Clause 1) Relevant Objectives: 1. Ensure sites are of sufficient size to accommodate well designed development. 2. Have regard to the future development of adjacent land. 3. Ensure that all elements of development visible from the street, waterways and/or public domain make a positive contribution to the streetscape. 4. Ensure development is compatible with the scale, character and landscape setting of its immediate vicinity or the desired character of a locality as set out in a locality strategy. … 8. Improve the visual amenity of the public domain. … Controls Clause 1.2 1. Lots must be of sufficient width to accommodate development. A site of minimum frontage width of 26m is appropriate for residential flat development. Where development of a narrower site is proposed the development must: a. provide safe and efficient access and servicing facilities - particularly in relation to parking, pedestrian and vehicle access, collection and storage of waste; b. provide a high standard of resident amenity- particularly in relation to privacy, solar access, ventilation, and the provision of outlooks to landscaped setbacks; c. respond to the local context, including providing adequate separation from existing and future adjoining development. Development sites with site frontage width less than 26m may not allow for the full FSR to be realised. 1. Side and Rear Setbacks (Clause 3) Relevant Objectives: … 2. Control overshadowing of adjacent properties and private or shared open space. 3. Provide opportunities for deep soil zones for tree planting. 4. Reinforce the desired spatial character of an area in terms of openness and density. … 7. Facilitate view corridors between buildings. ... Controls: 1. Side and rear setbacks must result in a development that: a. provides resident amenity- including privacy, solar access, ventilation, and landscaped setbacks; b. responds to the local context and provides streetscape amenity, including providing adequate separation from existing and future adjoining development; c. does not prevent a neighbouring site from achieving its full development potential d. has architectural merit. … 3. That part of a basement construction which extends beyond the building footprint must be set back a minimum of 3m from side and/or rear boundaries. 1. Solar Access (Clause 6) Objectives: 1. Design and locate buildings so that reliance on artificial light sources is minimised. 2. Maximise solar access to private open space, communal open space and living rooms within a development. 3. Ensure that daylight access is provided to all habitable rooms. 4. Ensure development retains reasonable levels of solar access to the neighbouring properties and the public domain. Controls: … 5. For neighbouring dwellings: a. Direct sunlight to north facing windows of habitable rooms and 10m2 of useable private open space areas of adjacent dwellings should not be reduced to less than 2 hours between 9.00am and 3.00pm on 21 June. b. Consideration will be given to reduced solar access where the proposed dwelling is generally compliant with all development standards and controls, and the extent of impact is the result of orientation, site constraints, and or existing built forms. 1. Council argues that Chapter 9 – Caringbah Medical Precinct is relevant to the Court's consideration of whether the proposal is compatible with the desired future character of the locality. DCP 2015 describes the precinct as follows: The precinct is located to the north west of Caringbah Centre and is bounded by the Kingsway to the north, the railway line to the south, the Sutherland Hospital to the northwest and Willarong Road to the southeast. The precinct is within an 800m radius of Caringbah railway station, providing a convenient walking distance to shops, offices, services and public transport. (Exhibit 4) 1. Clause 1 of Chapter 9 in DCP 2015 states "The chapter does not apply to development to other uses permissible uses in the zone, such as dwelling houses, dual occupancies and multi dwelling housing." On this basis the applicant argues the provisions of this chapter of DCP 2015 do not apply to the development other than to inform an assessment of compatibility with desired future character. 2. Under "strategy" Clause 2 of Chapter 9 in DCP 2015 notes: .. the intent of the precinct is to create a new area of mixed use developments in a landscaped setting with substantial landscaped building setbacks. While development at the increased height to 20m and floor space ration to 2:1 will change this area, large trees and landscaping are intended to soften the visual impact of new developments and help to protect the residential ambience of Flide Street. NOT IMPLEMENTED: support for w:pict - without v:imagedata 1. The Caringbah Medical Precinct Amalgamation Plan is provided within Chapter 9 at Map 2: The subject site is nominated as within Site 25, a grouping of 7 adjoining sites. 1. Chapter 9 also includes the following Building Envelope Plan of the precinct at Map 3: 1. Clause 5 of Chapter 9 of DCP 2015 details the amalgamation requirements. The chapeau to this clause reads: … Amalgamation patters have been defined for land within the Caringbah Medical Precinct as shown in the map Caringbah Medical Precinct Amalgamation requirements. To obtain the maximum height and FSR on a site in this area, Health Services Facilities must occupy 25% of the floor space of a redevelopment. Site amalgamation will be essential if a mixed use development including residential flats is to be developed up to the maximum floor space ratio and height while also complying with the design requirements of SEPP 65, and the streetscape and vehicle access strategy for this precinct. Individual developments must also allow for adjacent sites in the precinct to develop to their maximum potential. The site amalgamation plan allows for an arrangement of buildings – shown in the Building Envelope Plan – which can achieve this. Through block amalgamations are required between the Kingsway and Flide Street so that floor space can be distributed between taller buildings on the Kingsway and lower buildings on Flide Street. This arrangement allows for lower buildings on Flide Street which are more compatible with existing development on the south side of Flide Street. … 1. Council argues the proposed development is inconsistent with objective 2 of clause 5.1 which states: … Ensure that redevelopment does not isolate lots or prevent neighbouring land parcels from reaching their development potential. … 1. Further Council argues that the proposed development is inconsistent with the following controls: 2. Development of land in the Caringbah Medical Precinct where the bonus height and FSR is sought shall be in accordance with the Caringbah Medical Precinct Preferred Amalgamation Plan. 3. If an application proposes a development that does not comply with the amalgamation plan, a minimum street frontage of 26 metres should be achieved. This width will accommodate a development that: a. provides for safe and appropriate access and servicing facilities - vehicular parking, access, storage and waste management areas. b. provides for a high standard of resident amenity- including privacy, solar access, ventilation, and landscaped setbacks. c. responds to the local context, including providing adequate separation from existing and future adjoining development. Development sites with site frontage width less than 26m may not allow for the full FSR to be realised. 4. Development must be carried out in an orderly manner. If an application proposes a residential flat development that does not comply with the amalgamation plan, the applicant must demonstrate that development of an alternative amalgamation pattern can be achieved where all sites can achieve their full development potential. A schematic design must show that development of land under an alternative amalgamation pattern complies with SEPP 65 and the Apartment Design Guide standards, and allows for building forms of varied height across the precinct, as shown in the Building Envelope Plan. The assessment of any proposal to vary the amalgamation pattern will include consideration of the impact of the proposed development on the future capacity of lots left isolated. Expert Evidence 1. The Court heard expert planning evidence from of Mr Jeff Mead (Applicant) and Mr Brian McDonald (Respondent). Issues 1. The issues for the Court to determine are: 1. Whether the requested variation to height is well founded and worthy of support; 2. Whether the development is compatible with the character of the locality; 3. Whether the proposed development unreasonably limits the future potential of adjoining sites; and 4. Whether the amenity of the proposed development is acceptable. The requested variation to maximum building height. 1. The planning experts agree that the proposed development seeks to vary the maximum building height by 0.57m to facilitate the provision of a lift overrun and the increase in floor-to-floor heights to 3.1m which has resulted in the non-compliance of some roof areas. 2. It is clear from a reading of cl. 4.6 of LEP 2015 that the onus is on the applicant to meet the tests of cl 4.6 in seeking flexibility to the height standard by demonstrating that the breaches of the development standards are justified. 3. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Preston CJ outlines that Commissioners, in exercising the functions of the consent authority on appeal, have the power to grant consent to developments that contravene the building height standard (cl.4.6(2)). However they cannot grant such a development consent unless they: 1. are satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). 2. are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). 3. have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with they are satisfied that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). 4. have considered a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). 1. I have applied these tests to the current application in the following. Compliance with the zone objectives. 1. The relevant zone objectives are provided at paragraph [17]. Council argues that the proposed development is inconsistent with the following objectives: * To provide for the housing needs of the community within a high density residential environment. * To promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features. * To minimise the fragmentation of land that would prevent the achievement of high density residential development. 1. Within the variation request Mr Mead argues that the proposed development is consistent with the objectives of the zone as follows: The proposed development is consistent with the objectives of the zone as it will allow for the provision of a range of residential apartment sizes to meet the housing needs of the community. Apartments design to meet the adaptable and liveable housing requirements are incorporated into the building and will supply housing to meet the needs of older people and people with a disability. There is significant separation between the site and Flide Street, that the amenity of existing residential properties in Flide Street will not be impacted. Furthermore no vehicular access is proposed from the Kingsway. Documentation attached to the Clause 4.6 Statement in these proceedings shows the manner in which surrounding sites can be redeveloped despite the amalgamation pattern under Map 3 being varied. Those concept plans show that the maximum allowable density will be capable of being provided on those sites and therefore it is considered that the land within the precinct has not unreasonably fragmented. (Exhibit 1) 1. The planning experts agree that the transition of the proposed development to the adjacent two storey residential development in Flide Street is acceptable. 2. Relevant to the question of contextual fit, it is Mr McDonald's oral evidence that the proposed building has an approximate height of 7.8m at the rear. He accepts that the "blueberry ash" proposed by the applicant to be planted adjacent the rear boundary will reach an approximately equivalent height. 3. The planning experts agree that the retention of tree 2, and tree 4 (within the front setback), are important contributors to the existing character of the locality. These trees have an existing height of 10m and 8m respectively (Exhibit B). 4. Mr McDonald, whilst noting that a site with a boarder frontage could provide more effective landscaping, does note that "These trees contribute to the quality of the existing streetscape and would assist in softening the larger built form of the development".(Exhibit 1) 5. It is the evidence of Mr McDonald that when considered in isolation the cl. 4.6 variation request is well founded and the proposed height variation would not be perceived by the casual observer. However he does not agree with the assertion made by Mr Mead that "the separation distances and consequent amenity impacts on potential future developments adjacent are acceptable' (Exhibit 1). 6. In reference to the concept plans produced by the applicant for adjoining sites Mr McDonald is not satisfied that "they demonstrate the adjacent sites could be developed without compromised building separations and residential amenity" (Exhibit 1). 7. Further Mr McDonald argues that the development is inconsistent with the last objective of the zone, namely to minimise fragmentation of land. His reasoning is: The proposal is contrary to the broader planning strategy for the Caringbah Medical Precinct because it fails to comply with the sixth objective of the R4 zone of SSLEP 2015, which seeks "to minimise the fragmentation of land that would prevent achievement of high density residential development". The constraints that preclude design of an acceptable form of residential development primarily arise from the non-compliant width of a single allotment, which is considerably less than the width required by cl. 5.2.3 in Chapter 9 SSDCP. This does not allow for the objective to be met. (Exhibit 1) 1. Further Mr McDonald argues that if the remaining allotments who have the benefit of the existing amalgamated consent [DA/15/1401] undertook separate developments consistent with that of 21 Flide Street it would also prevent the ability to establish a pattern of built forms with generous landscape separations (Exhibit 1). 2. During the proceedings the respondent produced a street elevation and a sketch showing the replication of the proposed development on adjoining sites in Flide Street. It was Mr McDonald's evidence that the exhibit demonstrates the ineffectiveness of the proposed setbacks for landscaping. 3. In the alternative it was Mr Mead's view that whilst such affordable rental housing redevelopments would be possible in the zone, it would be unlikely to be replicated along the street given the obligations that flow from SEPPARH. Submissions 1. It is Mr McKee's submission that the need for the variation request arises from compliance with the Design Criteria at Objective 4C-1 of the ADG which nominates a 3.1m floor to floor height and on the basis of the evidence of Mr Mead the variation is consistent with the objectives of the zone. 2. Mr O'Gorman Hughes submits that on the basis of the evidence of Mr McDonald the proposed development fails to meet the objectives of the zone and the variation request should not be upheld. 3. Further Mr O'Gorman Hughes argues that the evidence of Mr Mead demonstrates that the development proposed does not produce development consistent with provision of housing in a high density residential environment. In forming this conclusion he relies on the following extract from the joint planning report: In the case of the proposal, the FSR is less than half the allowable FSR if the incentives for medical use were involved and is one less storey in height. The proposal meets landscape area and deep soil provisions and complies with car parking requirements. The proposal is far less than the maximum development allowed and this responds directly to the fact that the proposal occupies one allotment rather than an amalgamated site. The design is in my view acceptable and amenity to the proposal and adjoining developments will also be acceptable. (Exhibit 1) Findings 1. I am satisfied that the extent of the height exceedance is adequately demonstrated by the 'height blanket' drawing provided as part of the architectural drawings in Exhibit A. 2. I accept the reasoning of Mr Mead, and his evidence at paragraph [40] that the development is consistent with the provision of housing needs of the community within a high density residential environment. I am not persuaded by the submission of Mr O'Gorman Hughes that the decision of the applicant not to utilise the incentive provisions at cl.6.21 (and therefore propose development less than the maximum allowable) renders the proposal inconsistent with the zone objectives. 3. I am also satisfied that the proposed development, as demonstrated by in the architectural plans at Exhibit A, incorporates adaptable units (Unit 101 and 201) which is consistent with the objective of the zone to provide a variety of housing types. 4. During the onsite component of the proceedings I had the opportunity to view the subject site and the extent of Flide Street. I was able to make my own observations of the existing development and characteristics of the locality. I accept the agreed evidence of the planners that the proposal achieves an acceptable transition to the adjoining residential uses. My own observations of Flide Street are consistent with the conclusion of the planners that the street trees, and trees within the front setback, are important contributors to the existing character. I am satisfied these characteristics are retained by the proposed development. 5. On the basis of the preceding I am satisfied that the development is consistent with the objective of promoting a high standard of urban design in a high quality landscape setting that is compatible with natural features. 6. As detailed at paragraph [98- 100] I accept that the applicant has demonstrated that the approval of the proposed development does not preclude the adjoining properties achieving the yield potential envisaged by cl. 6.21 of LEP 2015. 7. I don't concur with the evidence of Mr McDonald that the proposal is contrary to the broader planning strategy for the Caringbah Medical Precinct. Rather, after giving weight to the zone objectives and the range of permissible uses provided within the R4 High Density Residential zone, I am satisfied that the development is consistent with the objective to minimise the fragmentation of land that would prevent achievement of high density residential development. I have reached this conclusion on the following basis: 1. As detailed in the following I accept Mr Mead's evidence [at 66-67] that the retention of the zoning at the time of inclusion of the incentive provisions must be given weight (BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [115-119]). The use, Residential flat buildings, proposed by the applicant is a permitted use in the R4 High Density Residential zone. 2. Exhibit 7, at a minimum, demonstrates an approach to the achievement of high density residential flat development in the form of affordable rental housing that could occur on the adjoining lands unaffected by the redevelopment of the subject site in an un-amalgamated form; 3. the applicant has demonstrated that the approval of the proposed development does not prejudice the development potential of adjoining land at the higher densities envisaged by cl. 6.21; 4. the R4 High Density Residential zone has a range of permissible residential development forms of varied intensity. 1. The development's compatibility with the remaining objectives of the zone is not contended by the Council. 2. Pursuant to clause 4.6 (4)(a)(ii), I find the proposed development is compatible with the zone objectives. Compliance with the objectives of the standard 1. The objectives of the height standard are provided at paragraph [19]. Council argues the development is not consistent with objective a(ii), (c) and (d) of the height standard. Compatibility with character : Objective a 1. The experts and the parties agree that in considering the consistency of the proposed development with this objective, future character is the relevant consideration. Council does not contend that the development is inconsistent with the existing character. 2. It is Mr Mead's evidence that the proposed development is consistent with the objective (a)(ii) of the height standard. The variation request outlines his reasoning as follows: This objective seeks to ensure that buildings are compatible with the height, bulk and scale of the adjoining development and the existing and future character of the locality and positively complement the landscape setting. In our view "compatible" does not promote "sameness" in built form but rather requires that development fits comfortably with its urban context. Of relevance to this assessment are the comments of Roseth SC in Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 91 at [22]. … The proposed development is of a scale that is consistent with the desired future character and scale of the Caringbah Medical Precinct. In fact the LEP (and DCP) allow for 4 storey development on 21 Flide Street subject to the inclusion of medical uses. The proposal does not include medical uses and as such has been designed to three storeys. Notwithstanding, it is notable that the desired future character for the precinct is one which contemplates an additional storey. The proposed non-compliance is a minor amount and the bulk of the building far less than a four storey building. This has benefits with enabling transition in built form to the opposite side of Flide Street which is an express objective of the planning controls. … 1. Further Mr Mead argues that the R4 High Density Residential zone does not prohibit redevelopment solely for residential use. He argues therefore that the future character of the precinct envisages that some development may not include a medical use (or utilise the incentive provisions). It is his evidence that therefore the future character, scale and mix of the precinct will be influenced by the range of permissible uses available in the R4 zone, and the market take up of the Caringbah Medical Precinct incentive provisions at cl. 6.21 of LEP 2015. 2. Mr Mead argues that the decision of Council to retain the R4 High Density Residential zoning for the precinct, notwithstanding the inclusion in LEP 2015 of the incentive provisions for Caringbah Medical Precinct, must be given weight. It is his evidence that this was a purposeful decision that maintained a range of permissible uses that 'fall outside' the scope of the Medical Precinct. Therefore he argues the desired future character sought by the controls, and relevant to objective (a), will be influenced by this mix of uses and the market take up of the incentive provisions. 3. It is Mr Mead's evidence that if the intent of the Council was for the precinct to have a character defined solely by the incentive provisions for Caringbah Medical Precinct the zone would be directive, permissible uses would be defined more narrowly, and the intent of the precinct reflected in the zone objectives. 4. On the basis of the preceding Mr Mead concludes that the controls in DCP 2015, Chapter 9: R4 Caringbah Medical Clinic does not apply to the subject application. He argues these controls are only relevant to the assessment of the proposed developments compatibility with the desired future character of the precinct. 5. In the alternative Mr McDonald relies on the building envelopes described in DCP 2015 at Map 3 (refer to paragraph [29]) as an indicator of Council's desired future character. As such he states that the planning controls 'indicate a desired future character along Flide Street that comprises buildings up to 4 storeys high widely spaced apart with landscaped areas in between. This arrangement will provide a high level of amenity for residential flat buildings as well as providing a transition in scale to the south side of the street, by avoiding closely spaced dominant building forms in sparsely landscaped settings' (Exhibit 1). He argues that the proposed development is contrary to this desired future character as it is developed as a single site which provides minimal, and non-compliant, setbacks. 6. Given the subject site currently forms part of the approved development DA/15/1401 Mr McDonald argues that separate development of 21 Flide Street as proposed will 'prevent the ability to establish a pattern of built forms with generous landscaped separations' (Exhibit 1). 7. On the preceding basis Mr McDonald concludes that the development is inconsistent with objective (a)(ii) of the height standard. 8. The development's compatibility with the remaining objectives of the height standard is not contended by the Council. Submissions 1. Mr O'Gorman Hughes submits that the desired future character should be derived from the application of the FSR and Height controls in the incentive provisions at cl. 6.21 of LEP 2015. He argues that these controls generate a pattern of built forms with significant separations to be provided between buildings. On the evidence of Mr McDonald, Mr O'Gorman Hughes submits that the proposed development is inconsistent with this development pattern in that it fails to provide sufficient landscaped separation between the built form of the proposal and the site boundaries. 2. Consistent with the evidence of Mr Mead, Mr McKee submits that the incentives in cl 6.21 of LEP 2015 are relevant to the desired future character. However it is his submission that this is only relevant to the extent that development proceeds in accordance with the clause and that weight should be given to the zone objectives and the range of permissible uses. 3. Further Mr McKee argues that the prevailing characteristic of the locality is the dominance of the street trees and the trees within the front setback and the development has been designed around the retention of these trees. Findings 1. I accept the agreed evidence of the planners that in determining the developments consistency with objective (a), which seeks in part to ensure development is consistent with the desired scale and character of the street and the locality, that the desired future character is the most relevant consideration in these proceedings. 2. I accept the evidence Mr Mead, at paragraph [65] that the term "compatible" in objective (a) should be read in the context of the decision of Roseth SC in Project Venture Developments Pty Ltd v Pittwater Council (2005) NSWLEC 91 at [22]. 3. Further I accept Mr Mead's interpretation of the varied character that will result from the interplay between the zoning provisions and the incentive provisions as detailed at paragraphs [67-68]. I prefer this consideration to the approach of Mr McDonald who relies on the provisions of the DCP at Chapter 9 for the following reasons: 1. the underlying high density residential zoning must be given appropriate weight in the consideration of desired future character; 2. pursuant to s 3.42 of the Act the principal purpose of a DCP is to give effect to the aims of an environmental planning instrument that applies to the development (in this case the LEP). The aims of the R4 High Density Residential zone are not solely focussed on the delivery of the Caringbah Medical Precinct Master plan. 1. Finally I accept the submission of Mr McKee that the existing and desired future character of the precinct is informed by the street trees which are also characteristic of Flide Street. I am satisfied that this characteristic is retained by the proposed development. 2. For these reasons I find that the development is consistent with objective (a) of the height standard. Impact of the proposal on adjoining or nearby properties (Objective c) 1. It is Mr Mead's evidence that the proposed development is consistent with the objective (c) of the height standard. The variation request outlines his reasoning as follows: This objective seeks to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion. As outlined in the Statement of Environmental Effects the proposed development demonstrates there will be no unreasonable detrimental impacts to views, privacy or daylight access and minimal visual intrusion on neighbouring properties. In terms of views, the height of the building will not result in any view loss compared with a compliant building. The height of the proposal will not be detrimental to the environmental amenity of the site and the surrounding properties. In terms of privacy, the non-compliance will not have any additional impacts on adjoining properties as it relates to a limited proportion of the roof and a lift overrun. The development has been designed to ensure that the setback to the rear and side boundaries, orientation and design of openings, and landscaping treatments provide appropriate building separation and privacy relationship. In relation to solar access, the building will result in shadow impacts that are reasonably anticipated as part of redeveloping a site. The additional shadow cast from the non-compliant elements of the building will be negligible. The proposal will allow for future development on adjoining sites to meet the ADG solar access requirements. This has been demonstrated in solar access studies attached to the Joint Report- Planning in these proceedings. (Exhibit 1) 1. Council argues that the proposed development is contrary to objective (c) of the height standard in three main ways: 1. if approved the proposal will unreasonably limit the development potential of adjoining properties and their ability to access the incentive provisions; 2. the provision of reduced setbacks restricts the opportunity for future developments on adjoining sites to access adequate solar gain and daylight; 3. the proposal does not represent an equitable distribution of separation distances under the ADG. 1. The planning experts accept that "the proposal does not 'isolate' any adjoining allotments for future redevelopment" (Exhibit 1). 2. To assist in the assessment of any impact on the adjoining properties of the development of the subject site as a single allotment the applicant prepared two development schematics. These propose two alternative options for the redevelopment of the adjacent properties at 19 and 23 Flide Street as part of larger amalgamated sites. For ease of understanding the building envelope plans for these options are extracted below: Option one: Option two: 1. Having reviewed these development schematics Mr McDonald notes: 1. Option one provided shows the adjacent sites providing a six metre setback to the common boundary with the subject site. This would result in a total of a nine metre separation between the two developments. 2. That such a setback arrangement limits the ability to provide habitable windows fronting the common boundary on 19 and 23 Flide Street as an AGD compliant 12m separation is not provided. Given the length of boundary it is Mr McDonald's evidence that a development proposal on the adjoining allotments is likely to seek habitable windows fronting the common boundary. On this basis he concludes that the subject site's proposed 3m setback impairs the development potential of 19 and 23 Flide Street sites on the basis they would need to provide an inequitable portion of the 12m building separation required; 3. Relying on the aims of Section 2F of the ADG (Building Separation) Mr McDonald argues that the intent of the separation distances is not solely to provide adequate privacy, but also to provide appropriate outlook for the residents and to meet the objective to "ensure that new development is appropriately scaled to support desired future character with appropriate massing and spaces between the buildings"; 4. The first option demonstrates that notwithstanding the nine metre setback, the proposed development would cast shadows on the face of development fronting the common boundary at 19 Flide Street. He concludes that "The subject development shadow diagrams show that, due to the site orientation, the south-west face of buildings along Flide Street cannot receive any direct sunlight between 9am and 3pm at the winter solstice and must rely on openings on the North wall" (Exhibit 1). 5. Given the impacts shown arising from the first option it is Mr McDonald's conclusion that the reduced setback will impact the future development potential and amenity arising from a redevelopment of 19 Flide Street. 6. Mr McDonald has also reviewed the second schematic option. This option replicates the same development on 19 Flide Street as that proposed in Option 1 however leaves 23 Flide Street unbuilt upon. He notes that this option has the advantage of minimising shadows cast on the northern wall of the proposed development. However he notes that given the indicated six metre setback on the adjoining properties and the three metre setback proposed on the subject site the urban outcome would be a long nine metre wide separation between two four storey buildings. He concludes this is inconsistent with the intent of the building separation distances under the ADG 1. It is Mr McDonald's evidence that the alternative designs provided by the applicant validate Council's concern that approval of the application will result in the burden of achieving separations between buildings that comply with the ADG falling on the adjacent properties at 19 and 23 Flide Street (Exhibit 1). 2. In light of the preceding, Mr McDonald concludes that the schematic options proposed by the applicant "do not demonstrate that that the adjacent sites could be developed without compromised building separations and residential amenity" and that the development fails to satisfy objective (c) of the height standard (Exhibit 1). 3. In addition to the arguments detailed in the variation request (refer paragraph [82]) Mr Mead argues that the proposed development is consistent with objective (c) for the following reasons: 1. That the conceptual building footprints prepared for development on adjoining sites (Option 1 and 2) will result in the same solar access being achieved by the development proposed for 21 Flide Street. This demonstrates that even after future redevelopment on adjoining sites the subject development will continue to be compliant with the ADG requirements for solar access. 2. The conceptual building footprints show that development of the adjoining and proximate sites are "capable of meeting the maximum FSR controls (if they choose to take up the bonus incentives)" (Exhibit 1). 3. The concept plans maintain access to the development sites from Flide Street, consistent with the master plan for the precinct. 4. The amalgamation pattern has been varied in the precinct previously with the approval of DA/15/140 which included the subject site. In this approval the grouping of properties was inconsistent with the master plan for the precinct. 5. The provision of open space will be consistent with the planning controls in the LEP and the ADG. The location of open space in the master plan is likely to be varied by individual development proposals and has already been varied by the approval of DA16/0456 which incorporated 29-31 Flide Street and 404-406 The Kingsway. This approval effectively reduced the amount of open space on 31 Flide Street from that shown on the master plan. Mr Mead concludes that: It is therefore not unreasonable to expect the pattern of built form and open spaces within the precinct to change from what the DCP shows. Each development will be compelled to meet open space requirements (LEP landscaped area development standard, ADG deep soil) and therefore it is likely, if not certain, that the amount of landscaping across the precinct will arrive at a similar quantum to that envisaged by the DCP, simply its arrangement may differ. (Exhibit 1). 1. The indicative building envelopes show that the subject site is no longer set aside as open space that the master plan envisages may occur under the incentive provisions as part of a larger amalgamated development. However the alternative designs show two potential approaches: (Option 1) In effect the arrangements on Sites 14 and 15 [as shown at paragraph 28] remain in a similar state. In effect, the concept envelopes show that the development on Site 14 is likely to be set further away from the common boundary than envisaged and therefore while the open space on No. 27 Flide may become a little smaller, this increased side setback on No. 23 will be wider. Development on Site 15 facing Flide Street may be more "centered" providing even width opens spaces within each setback. … In my opinion, the proposal will therefore maintain a distinctive pattern of landscaping in the spaces between the buildings facing Flide Street that will complement the street tree planting that will also remain. (Option 2) … provides an outcome whereby a large consolidated open space could be provided within Site 14 whilst the maximum allowable density will still be achieved. The outcome of that plan is that the consolidated open space shown on the subject site in Map 3 [as shown at paragraph 28] would be shifted from the subject site to the adjoining site (whilst not burdening that site in terms of yield), thereby providing a "spacing" or landscape outcome that is similar to the character envisaged by the DCP. (Exhibit 1) 1. In response to concerns raised by Mr McDonald in relation to solar access for potential developments on adjoining sites Mr Mead argues: "Shadow potential on adjoining sites has been tested and shows that 70% of those dwellings could achieve solar access per the ADG" (Exhibit 1). He reaches this conclusion on the following basis: 2.2.11 The Solar Study – Front (DCP Building Envelope Compliant) Plan which accompanies the conceptual footprint plan shows that the adjoining site to the south-east will not be affected by the proposal in a manner that would negate solar to any units until after 1pm. … The proposal will not burden that site in terms of being able to meet the ADG solar access provisions. 2.2.12 Site 14 is to the north-west of the subject site and therefore, development on that site will not be affected by shadow cast from the proposed development. Therefore the variation to the amalgamation pattern will not adversely affect solar access to future development on Sites 14 and 15 to the extent of not being able to meet ADG requirements. Equally solar access to the "potential envelope" on site 14 has been tested in light of the approval under DA 16/0456 and that envelope is also capable of meeting the ADG despite the variation of the amalgamation pattern. 1. Mr McDonald also argues that the development fails to meet the following objectives and controls of Section 11 of Chapter 9 of DCP2015 in relation to side and rear setbacks: 11.1 Objectives 4. Reinforce the desired spatial character of an area in terms of openness and density; 5. Mitigate the visual intrusion of building bulk on neighbouring properties; 7. Facilitate view corridors between buildings; 9. Require increased setback with increased building height and length. 11.2 Controls 1. Side and rear setbacks should be in accordance with Caringbah Medical Precinct Building Envelope Plan as follows: … b. For sites in the block between the Kingsway and Flide Street: i. The minimum side setback at ground level is 4m. ii. Floors above 2 storeys up to a height of 4 storeys (12m) are to be set back a further 4m, or sufficient to achieve the required 12m building separation. iii. Floors above 4 storeys are to be set back a further 10m, or sufficient to achieve the required 18m building separation. 11.3 Assessment Principles 1. Where a variation to Map 3 Caringbah Medical Precinct Building Envelope Plan is sought, in assessment will be in accordance with the SEPP 65 and Apartment Design Guide building separation distances. Where the neighbouring site is not yet developed, habitable rooms should be assumed when calculating separation distances: a. Up to four storeys (12m): i. 12 metres between habitable rooms/balconies ii. 9 metres between habitable rooms and non-habitable rooms iii. 6 metres between non-habitable rooms. 1. The proposed development has a side setback to both common boundaries of 3m, with incursions into this setback for building articulation and landscape walls. The rear setback is 6m. 2. It is the evidence of Mr McDonald that these setbacks, and the non-compliance with the DCP setback controls, demonstrate that given its limited frontage the site is unsuitable for the development proposed. Further he argues that: 2.2.4 The proposed development attempts to overcome the non-compliant 3 metre side separation by a combination of obscure glazing, high window sills and angled screens to side windows that minimise outlook and natural daylight to bedrooms resulting in poor internal amenity. The proposed 3 metre setback from the site boundary is not consistent with the Assessment Principles of Clause 11.3 above, whereby a variation to map 3 (requires development) to be in accordance with SEPP 65 and the Apartment Design Guide building separation distances. (Exhibit 1) 1. The experts agree that "development of the subject site is not capable of strictly complying with the ADG in that, if 6m setbacks to each side were required, the developable portion of the site would be just over 3m wide" (Exhibit 1). 2. Mr Mead argues that the design of the proposed development is predicated on the site dimension and responds to the narrow width by orienting habitable rooms with a primary outlook to the front and back boundaries and providing only minimal windows (including highlight and hood style windows) fronting the side boundaries. 3. It is Mr Mead's evidence, as detailed at paragraph [69], that the controls in Chapter 9 of DCP 2015 do not apply to the development application. As a result the proposed development does not vary the setback controls in Section 11 of Chapter 9 of DCP2015 as they do not apply. Submissions 1. In regards to the evidence of Mr McDonald pertaining to the setback controls at paragraph [90], Mr McKee submits the DCP at Chapter 6: Section a. Residential Flat Buildings in the R4 zone notes (emphasis added): State Environmental Planning Policy 65 is now a fundamental part of the assessment of residential flat buildings. The application of the SEPP is proposed to expand to include mixed use development and shop top housing of three or more storeys containing 4 or more units (draft amendments). The SEPP and the Apartment Design Guide 2015 (ADG) prevail over Council's DCP requirements. The SEPP is supported by tools for improving the design of residential flat buildings and gives guidance on how the design quality principles provided under SEPP 65 can be applied to new developments. As a matter of policy the principles of the ADG will be applied to all development defined as Residential Flat Buildings. Mr McKee submits that therefore the evidence of Mr McDonald on the developments compliance with these controls should be given little weight. Findings 1. As detailed at [83] Council raises three key areas in which they argue the proposed development is inconsistent with objective (c) of the height standard. 2. I note that in oral evidence the planning experts accepted that the conceptual yield analysis provided by the applicant as an appendix to the joint planning report demonstrates no loss of development potential or yield for adjoining development sites. 3. Having reviewed the development schematics and the yield calculations contained in Annexure C of the joint planning report I concur with their conclusion. 4. On this basis I am satisfied that the applicant has appropriately demonstrated that the approval of their development, and the variation to the Caringbah Medical Precinct master plan, does not prejudice the development potential of adjoining properties accessing the incentive provisions. In this regard I am satisfied the development is consistent with the objective to "minimise the impacts of new buildings on adjacent properties". 5. I am not persuaded by Mr McDonald's evidence at paragraph [86] that the setback arrangements proposed by the applicant prejudices future development of adjoining sites and I prefer the evidence of Mr Mead for the following reasons: 1. I am satisfied (by reference to the streetscape elevations in Exhibit F) that the intent of the ADG building separation provisions to ensure new development is appropriately scaled to support desired future character is achieved by the proposal. In my view the elevation demonstrates the compatibility of the proposal with the adjoining development if those sites purse the incentive provisions; 2. The planners agree that the proposal provides a suitable transition to the existing residential development in Flide Street. 3. I am not persuaded by the argument that the approval of the development will burden adjoining sites with a disproportionate separation distance. On the evidence I can comfortably conclude that either the adjoining properties (if they seek to redevelop) will pursue an amalgamated form of development and access the incentive provisions or development as a single allotment for another permissible use. If developed as a single allotment, similar architectural devices may be utilised to respond to the reduced site width and such an approach would not be prejudiced by the proposed development. If developed as part of an amalgamated site I accept the evidence of Mr Mead at paragraph [89(6)] that at least two feasible options exist and the spatial characteristics of those options would not be prejudiced by the proposed development. 4. I accept the evidence of Mr Mead at paragraph [89(6)] that the "Solar Study" which accompanies the conceptual plans demonstrates that the development satisfies the objective of "minimising impacts of new developments on adjoining properties". 1. Consistent with my earlier finding I accept the evidence of Mr Mead paragraph [69 and 95] I find that the setback controls at Section 11 of Chapter 9 of DCP 2015 do not apply to the development of the subject site for the purposes of a residential flat building. As such the application does not represent a variation to these controls. 2. I accept the submission of Mr McKee that the ADG separation controls prevail over the setback controls in Chapter 6 of DCP 2015. Consistent with the evidence of Mr Mead, I find that the development responds to the site conditions (including its width), the intent of SEPPARH. For the reasons given in the proceeding I am satisfied that the development achieves the objective in 3F.1: Visual Privacy, namely: adequate building separation distances are shared equitably between neighbouring sites to achieve reasonable levels of external and internal visual privacy. 3. For these reasons I find the development is consistent with objective (c) of the height standard. Visual impact minimised: Objective (d) 1. It is Mr Mead's evidence that the proposed development is consistent with the objective (d) of the height standard. The variation request outlines his reasoning as follows: This objective seeks to ensure the visual impact of buildings is minimised. The proposed development will not result in any greater visual impact compared with a compliant building given the minor extent of the non-compliance and the fact that a four storey development is contemplated on the site subject to use. 1. The planning experts agree that the proposed development provides a suitable transition to the adjoining residential development in Flide Street (Exhibit 1). Findings 1. I note that the experts agree that: 1. the variation to the maximum building height sought would not be perceived by the casual observer; 2. the transition in height to the existing residential development is acceptable; 3. the existing and proposed plantings will provide vegetation of equivalent or greater height than the proposed building and will contribute to the softening of the building. 1. On the basis of the site view and a review of the architectural plans I concur with the preceding evidence of the experts and conclude that the visual impact of the development is satisfactorily minimised. 2. For these reasons I find the development is consistent with objective (d) of the height standard. Is it established that compliance is unreasonable or unnecessary? 1. Wehbe v Pittwater Council [2007] NSWLEC 827 at [44]-[48] detailed a number of approaches which may establish that compliance with a development standard is unreasonable or unnecessary for the purposes of cl 4.6(3)(a). Namely that: the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); the underlying objective or purpose of the standard is not relevant to the development (Wehbe test 2); that the objective would be thwarted if compliance was required (Wehbe test 3); that the development has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or that the zoning of the land is unreasonable or inappropriate. 2. In this appeal the applicant seeks to establish that the objectives of the standard are achieved notwithstanding the variation (Wehbe test 1). 3. In the variation request Mr Mead argues that that compliance with the standard is unreasonable or unnecessary in the circumstances of the case for the following reasons: • The proposed height variation would be imperceptible to the casual observer. • Requiring strict compliance with the height limit would undermine or thwart the objective of the height standard and zone objectives, as outlined previously. • If the height control was strictly applied this would reduce the number of dwellings provided within the development and/or lift access to the upper level, which would undermine or thwart the objectives of the ARHSEPP, LEP and DCP and (the) ability to maximise public transport patronage by occupants of the site. … The development proposal will provide an affordable housing development with a high level of amenity and attractive streetscape presentation. This is achieved by well-planned and functional built form. The non- compliance relates essentially to a relatively small section of the upper level and the lift overrun. There will be no broader planning benefit achieved by requiring compliance. (Exhibit 1) Findings 1. I find that I can be satisfied that the applicant's written request adequately demonstrates the matters in cl. 4.6(3)(a) of the LEP. I accept the evidence of Mr Mead and his reasoning at paragraph [112] that the objectives of the standard are achieved notwithstanding the noncompliance for the reasons. Consistent with my findings in the preceding I am satisfied on the basis of the evidence that it is unnecessary for the development to be compliant with the height standard for these objectives to be achieved. Are there sufficient environmental planning grounds to justify the variation? 1. In the variation request Mr Mead argues there are sufficient environmental planning grounds principally on the basis that: … there is an absence of significant impacts of the proposed non-compliance on the amenity of future building occupants, on area character and on existing occupants of future development on neighbouring properties. On "planning grounds" and in order to satisfy that the proposal meets objective 1(b) of Clause 4.6 in that allowing flexibility in the particular circumstances of this development will achieve "a better outcome for and from development", it is considered that the proposal represents a building scale which is compatible with the capacity of the site and the intended future character of the Caringbah Medical Precinct. … The alternative would be to not provide lift access to the upper level or to remove upper portions of the building, however, the benefit of amending the design in such a manner (no material built or natural environmental benefits) is much less than the burden that would be placed on the development through: • reduced development yield; • failure to maximise attainment of the objectives of the ARHSEPP, for development within the R4 zone and Caringbah Medical Precinct, namely, the provision of housing within a high density residential environment; • reduced dwelling yield would not maximise opportunities for the provision of housing in close proximity to public transport, employment and services. (Exhibit 1) 1. In the joint planning report Mr McDonald makes the following comments in relation to the cl. 4.6 request: … If the breach of the building height control is considered in isolation, the Clause 4.6 written submission would be well founded. The proposed height variation would not be perceived by the casual observer. Nevertheless, the submission also relies on arguments about separation distances and consequent amenity impacts on potential future developments adjacent are acceptable in consideration of the height of the building. I do not agree with these aspects of the Clause 4.6 written submission for the reasons given elsewhere in the statement. (Exhibit 1) 1. The Council's primary contention, and Mr O'Gorman Hughes submissions, focussed on the inconsistency of the proposed development with the zone objectives and the objectives of the height standard. Findings 1. Having regard to the evidence and in particular to the written objection prepared, I am satisfied that there are sufficient environmental planning grounds to justify the variation. In particular I am satisfied that: 1. the provision of lift access to the upper level apartments, in particular to the proposed adaptable unit (201) is appropriate and beneficial; 2. that the application allows for the provision of affordable rental housing within this locality in close proximity to public transport, employment and services in a manner found to have no material dis-benefit to adjoining properties; and 3. the extent of variation sought is consistent with the objectives of cl4.6(b) to achieve better outcomes from the development by allowing flexibility in the application of the height control. 1. Finally, as required by cl 4.6(5) I am satisfied that the variation sought does not raise any matters of significance for State or regional planning that would warrant refusal of the variation request. 2. In short, I am satisfied that there is no public benefit in maintaining the development standard in this particular case. The variation request to compliance with the standard is in my opinion well‑founded for the reasons stated. Is the development compatible with the character of the local area? 1. Council does not contend that the development is inconsistent with the existing character. At paragraph [57] I found that I can be satisfied that the development is consistent with the desired future character of the street and locality. 2. As noted at paragraph [43] the planning experts agree that the retention of tree 2, and tree 4 (within the front setback), are important contributors to the existing character of the locality. I accept their agreement. 3. Clause 16A of SEPP ARH requires that 'the consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area'. 4. On the basis of the evidence and my observations on the site view, I am satisfied that the development as proposed is also compatible with the existing character of the local area. Does the proposed development unreasonably limit the future potential of adjoining sites? 1. At paragraph [98-100] I noted that I am satisfied that the development does not unreasonably limit the future potential of adjoining sites. 2. Further, I am satisfied pursuant to s4.15(1)(c) of the Act the site is suitable for the development proposed. Is the amenity of the proposed development acceptable? 1. Council contends that the proposal fails to provide sufficient solar access and cross ventilation. 2. In regards to solar access the experts agree that 67.67% of apartments achieve the design criteria at 4A-1 of the ADG of living rooms and private open space receiving a minimum of 2 hours sunlight between 9am and 3pm in midwinter (Exhibit 1). 3. This is a variation to the Design criteria at 4A-1 of the ADG which seeks: Living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9 am and 3 pm at mid-winter. 1. However the development achieves less than the maximum allowance of 15% of apartments in a building receive no direct sunlight between 9 am and 3 pm at mid-winter (Design criteria at 4A-1 of the ADG) 2. The experts also agree that "cross ventilation to apartments G01, 101 and 201 is through a direct flow of air. Cross ventilation to other apartments would be improved by providing operable fanlights over the entrance doors" (Exhibit 1). 3. It is Mr McDonald's evidence that the cross ventilation for the six east facing apartments is "not ideal" due to the limited opening provided by the fanlights and the change in direction proposed by the flow of air. He notes: The less than optimal performance of the cross ventilation of the 6 east facing apartments arises from the non-compliant width of the site but is not considered to be a determinative factor on its own. (Exhibit 1) 1. In the alternative it is Mr Mead's evidence that the proposal complies with the ADG requirements. He argues that: 1. the ADG contemplates ventilation being provided through changes in direction; 2. Each unit contains several inlets and outlets for air on different facades; 3. the narrow dimensions of the apartment and the depths of the rooms are consistent with the relevant design guidance at 4B-2 of the ADG. 1. Mr O'Gorman Hughes submits that the analysis completed by Mr Mead to conclude that the adjoining sites can achieve solar access compliance with the ADG is incorrect. His reasoning is that the stated solar durations rely on windows facing both north west and north east. Mr O'Gorman Hughes submits that this is contrary to cl.6.2(1) of DCP 2015 which states: 1. New buildings and additions shall be sited and designed to maximise direct sunlight to north-facing living areas, communal and private open space areas. … and 6.3(1)(iv) of DCP 2015 which states "in areas undergoing change, the impact on what is likely to be built on adjoining sites should be considered as well as the existing development". 1. On this basis Mr O'Gorman Hughes concludes that the development does not achieve compliance with the solar access controls in DCP 2015. 2. Council also argues that the development fails to provide an acceptable amount of communal open space. The Statement of Facts and contentions particularise this issue as follows: The communal open space fails to provide outdoor recreation opportunities for residents, connection to the natural environment and valuable 'breathing space' between apartment buildings. The nominated communal open space is insufficient in area (not achieving the required 25% of site area) and design as a communal open space as it is within a long narrow area in which the clothes lines for the residential flat building are located. The proposal offends Objective 3D-1 of the ADG which requires 25% of the site to be communal open space. (Exhibit 5) 1. Council's draft conditions of consent incorporate the following condition: 2. Design changes required: A. Before Construction … v) Provide a minimum 100 sqm roof terrace with 50% solar access for 2 hours in winter for use as Communal Open Space (COS). Provide a universal toilet, all weather cover over the entry door, a shade structure, BBQ, basic kitchen facilities, planting and furniture in the COS. … (Exhibit 6) 1. The experts agree that the communal open space shown in the architectural plans on the north side of the building would achieve direct sunlight over at least 50% of its area at mid-winter and that its location adjacent the entry to the building is conducive to social interaction. 2. Mr McDonald argues that applying Section 12 of Chapter 9 of DCP 2015 the development should have a minimum area of communal open space equal to 25% of the site or 100sqm. Mr McDonald argues that the communal open space provided is inadequate in area and is too small to accommodate the types of facilities recommended in Objective 3D-2 of the Apartment Design Guide. Further he argues the space unsuitable as it is traversed by a path, contains a drying area, has limited scope for landscaping, limited space for residents to congregate and, being above the basement, has no opportunity for deep soil planting (Exhibit 1). 3. In the alternative Mr Mead's assessment is that the proposed development comprises 9 apartments and is therefore a relatively small strata building. In addition to the proposed 27sqm of dedicated common space he argues that in my opinion, the private access to Unit G02 should be deleted as it is unnecessary. This would allow the entire area from the main entrance to that private entry to be communal open space without interference by a pathway. It is Mr Mead's assessment that this area, combined with the seating area next to G01, would provide a well-proportioned communal open space area for a development of this size. Findings 1. I accept the conclusion of Mr McDonald that a negative finding on cross ventilation would not be a determinative factor on its own to support refusal of the application. 2. By reference to Figure 4B-88 of Section 4B: Natural Ventilation, I accept the evidence of Mr Mead the ADG contemplates ventilation being provided through changes in direction. I am satisfied that the proposed development achieves the design criteria of 60% of apartments being natural cross ventilated and is therefore acceptable in this regard. 3. I am not persuaded by Mr O'Gorman Hughes' submission that in assessing solar and daylight access it is inappropriate or incorrect to take cumulative view of solar gain received across the building façade. Whilst DCP 2015 at cl. 6.2.(1) states: "New buildings and additions shall be sited and designed to maximise direct sunlight and north facing living areas, communal and private open space", consistent with preceding, Section 4A of the ADG prevails. This provision requires an assessment of the amount of "direct sunlight" received by habitable rooms, primary windows and private open space. Such an assessment inherently follows the path of the sun across a building for the duration of the period 9am to 3pm. 4. After giving appropriate weight to the provisions of the SEPPARH in assessing the proposed variation to the solar access provision I am satisfied it is appropriate to vary the design criteria in the ADG. I note that the development results in less than the maximum 15% of apartments with less no direct sunlight between 9am and 3pm in midwinter. 5. I accept the evidence of Mr Mead that the "private entry" to unit G02 should be deleted and the resulting area incorporated into a larger communal open space. The directions include an additional condition of consent to facilitate this amendment to the development. 6. I am not satisfied that it is appropriate to impose the condition sought by the Council for the following reasons: 1. The section of DCP 2015 relied on by Mr McDonald applies to the development in the Caringbah Medical Precinct that proposed medical services. As detailed earlier in the judgement I am satisfied that Chapter 9 of the DCP does not apply to the subject application for a residential flat building. Chapter 6 of DCP 2015 contains no specific controls for the provision of Communal Open Space. The ADG (at Objective 3D-1) requires that "An adequate area of communal open space is provided to enhance residential amenity and to provide opportunities for landscaping". 2. I accept the evidence of Mr Mead at paragraph [139] and his reasoning. I am not persuaded that the communal open space proposed by the applicant (and augmented by the finding at [144]) is unsatisfactory given the scale of the development. I am satisfied that the communal open space, whilst a variation to the design criteria in the ADG, meets Objective 3D-1; 3. the condition has the potential to generate new impacts (such as overlooking) which have not been assessed or the subject of evidence in the proceedings; 4. it is uncertain whether such a communal open space would require structures that would result in a further breach of the height standard which is not envisaged by the current cl. 4.6 variation request (for example balustrading, toilet facilities, shade structure etc). Public Interest (s4.15(1)(e) of the Act): 1. In terms of the issues raised by the public in submissions, it is common for the provision of affordable rental housing in low density residential areas to be opposed by a significant number of neighbours. The SEPP ARH however, encourages their development in such areas to provide an alternative form of housing subject to the development not being compatible with its context and the amenity impacts being acceptable. It is intent of SEPPARH to provide new affordable rental housing. Whilst the residents are concerned one bedroom units will not meet market demand, I am satisfied they meet the intent of the SEPP. 2. In this matter I find that the test of compatibility with character of the local area is met and that there are no unreasonable amenity impacts that arise from the development. I am satisfied the residents' concerns in relation to visual privacy and overshadowing have been appropriately considered by the amended plans and the impacts are acceptable. 3. I am satisfied that the conditions of consent include appropriate controls on noise and the ongoing management of the boarding house (in particular Conditions 14, 20, 21, and 40). 4. Whilst residents raised concerns in relation to the adequacy of the parking provision, parking is among the matters which cannot be used to refuse consent where the development complies with the controls contained in clause 29(2) of SEPPARH. This development is compliant with the required parking of 0.2 spaces per boarding room. 5. The residents argue that street frontage of the subject site is too narrow to accommodate the proposed development and is inconsistent with Council's planning controls. I am satisfied that the street frontage control of 26m (cl. 5.2.3 of Chapter 9) does not apply to the subject development as it does not propose health services facility. This is made clear by the wording of cl. 1 of Chapter nine, refer paragraph [26]. 6. The resident submissions raise concern about the quality of the communal open space provided by the subject property. As noted at paragraph [144] the communal open space will be expanded to include additional area. 7. Whilst the potential impact on property values was raised by residents there is no evidence before the Court to suggest that the use would devalue properties in the vicinity of the subject site. 8. Residents also raised concerns in relation to the potential impact on their properties being able to be amalgamated in accordance with the Caringbah Medical Precinct master plan. As noted at paragraph [98-100] I am satisfied by the evidence that the approval of development on the subject site does not adversely impact the potential redevelopment of adjoining sites. I accept the evidence of the planners that the application does not isolate adjoining properties. On that basis I am satisfied that the Court's planning principles on the isolation of adjoining sites are not a relevant consideration. 9. Whilst the residents are concerned that approval of the subject application will undermine the intent of the Caringbah Medical Precinct, I accept the evidence of Mr Mead that the planning intent of the R4 High Density Residential zone is to produce a mixed use precinct. The LEP controls have a base zoning of high density residential. This allows the potential for sites to develop for a range of other permissible uses notwithstanding the incentives for the incorporation of Medical services facilities. The subject application is consistent with that intent. 10. In considering the agreed conditions, the amendments made to the application and taking into consideration the issues raised by the objectors, I am satisfied that it is appropriate to grant consent to the proposal. 11. In determining this matter, I have undertaken a detailed view of the site, considered the evidence, resident objections and submissions. Having carefully considered the joint expert reports and final submissions of the parties I am satisfied that the application warrants approval. Orders: 1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans; 2. No order as to costs; 3. The objection pursuant to cl 4.6 of the Sutherland Local Environmental Plan 2015 is upheld; 4. The appeal is upheld; 5. Consent is granted to Development Application No. DA17/0888 for demolition of existing structures and construction of a residential flat building containing nine units and basement parking at Lot 34, DP 8147, 21 Flide Street, Caringbah subject to conditions in Annexure A as amended by this judgement; 6. The exhibits are returned with the exception of Exhibit A, B, D and 5. ______________ D M Dickson Commissioner of the Court Annexure A (204 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: 08 May 2018