Adam Hughes Pty Ltd v Penrith City Council [2018] NSWLEC 1369

Land and Environment Court New South Wales

Medium Neutral Citation: Adam Hughes Pty Ltd v Penrith City Council [2018] NSWLEC 1369 Hearing dates: 23-24 May 2018 Date of orders: 20 July 2018 Decision date: 20 July 2018 Jurisdiction: Class 1 Before: Dickson C Decision: Orders at [93] Catchwords: DEVELOPMENT APPEAL: residential flat building – area in transition – urban design of the building – amenity of future residents – building height exceedance - desired future character – site isolation and orderly development –weighing of impact of site isolation in overall merit assessment – appeal upheld Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Melissa Grech v Auburn Council [2004] NSWLEC 40 Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189 Wehbe v Pittwater Council [2007] NSWLEC 827 Karavellas v Sutherland Shire Council [2004] NSWLEC 251 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Adam Hughes Pty Ltd (First Applicant) Signature Group Pty Ltd (Second Applicant) Penrith City Council (Respondent) Representation: Counsels: I Hemmings SC (Applicant) F Berglund (Applicant) M Seymour (Respondent)

Solicitors: Church and Grace Solicitors (Applicant) Dentons Australia (Respondent) File Number(s): 2017/210327 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal by Penrith City Council of Development Application number DA/16/0521. The application seeks consent for the construction of a six storey residential flat building, comprising 43 apartments and two levels of basement parking. The development is proposed at 32-36 Lethbridge Street, Penrith. 2. Following the termination of the conciliation the applicant made amendments to the proposed development. The Court granted leave to the applicant to rely on amended plans and documentation in April 2018. The applicant argues that the amended plans "incorporate decreased scale, increased setbacks and revised design and landscaping. The number of apartments is reduced from 43 to 41 with reconfiguration of some apartments" (Affidavit dated 10 April 2018). 3. In response to these amended plans Council maintained the application should be refused on the following grounds: 1. the scale and design of the proposed development does not respond appropriately to the sites context; 2. the proposed development provides unsatisfactory residential amenity for future residents; 3. the density of the proposed development is excessive and is not consistent with the desired future character of the locality; 4. the variation to building height is not well founded and should not be upheld by the Court; 5. the proposed development fails to provide the required building separation to adjoining properties; and 6. the development will result in the isolation of 30 Lethbridge Street and prevent its redevelopment for high density housing. 1. Following the joint conferencing of the experts a further set of amended plans were produced by the applicant. These further amended plans entail the following main changes: 1. an increase in the depth of the street setback of the building; 2. a redesign of the street elevation to moderate the buildings scale and improve the articulation of the façade; 3. provision of roof top communal open space for the development at level five; 4. redesign of some apartments; and 5. amendments to the landscape design. 1. The supplementary joint planning report concludes that these amendments satisfy the Council's town planning and urban design concerns (at paragraph [3]). The report states the experts are agreed as follows: Height: Building height remains numerically non-compliant but that non-compliance has been justified in the appropriate manner: i Height exceeds the 18m maximum generally as outlined in the further-amended 15 clause 4.6 variation request. ii The further-amended variation request demonstrates that the further-amended development satisfies provisions under clause 4.6 of PLEP 2010: - Compliance with the 18m development standard is unnecessary or unreasonable in the circumstances of the case; - Details of the further-amended development provide sufficient environmental planning grounds to support the departure from the 18m standard; - Reasons provided by the variation request are valid and acceptable. … Setbacks: Building separation, measured in terms of setbacks from side and rear boundaries, remains numerically non-compliant, but potential impacts have been avoided or managed appropriately. … Solar access: Although there are differences of opinion in relation to solar access which raise the question of non-compliance with ADG metrics, the lesser estimate of solar access may be justified by reference to ADG design guidance: i Although likely shadow-impacts of the proposed atrium roof have not been agreed, the consequences are relatively minor: - At worst, the atrium roof would limit sunlight to two dwellings; - Otherwise, the experts have agreed that two hours of daily sunlight during midwinter would be available for 25 dwellings (or 66% of the proposed total); - If the atrium roof does not block sunlight to clerestory windows, 27 dwellings or 71% of the total would receive appropriate sunlight. ii Scope for non-compliance with the 70% target is provided by Design Guidance notes to element 4A-1 of the ADG: - Situations where greater residential amenity can be achieved by orienting windows away from sunlight; - Where design is affected by site constraints and orientation. iii Circumstances of the Site, together with design of the further-amended development, address the specified Design Guidance criteria: - Site dimensions can comfortably accommodate two rows of apartments per level; - Layout of the proposed apartments maximises the number of north-facing apartments than can be accommodated across the Site's frontage: typically four per storey; - Detailed design of apartments at the south-western corner of the building allow sunlight to penetrate living rooms and balconies (which are south-facing); - Re-orientation of the proposed clerestory roof-lights (per the further-amended architectural plans) would have two significant benefits: the roof­top communal open space would be linked and enlarged (noting that two separate spaces were proposed by the amended architectural plans). iv Consequently, the further-amended proposal is consistent with Objective 4A-1 of the ADG. … Communal Open Space and Landscape: The combined area of 'useable' communal open space is slightly less than specified by the ADG metrics, but merit assessment indicates that the proposed shortfall would not be inconsistent with the relevant ADG objectives … Further-amended landscape diagrams provide a satisfactory foundation for formal amendment of the current plans. … Building Form: Further-amendments to building forms and facades are satisfactory: i Scale of the further-amended form would be contextually-appropriate: reasonable transitions have been achieved in relation to residential neighbours to the east and west. ii Form and facades incorporate a degree of articulation together with light-weight and visually-recessive elements, which provide satisfactory responses to the desired character of traditional residential localities as nominated by the PDCP. iii In conjunction with further-amendments to proposed landscaping, the further-amended street elevation would contribute to satisfactory streetscape quality. … (Exhibit 5) 1. On 24 May 2018 the Applicant was granted leave to rely on these further amended set of plans (Exhibit B). At the completion of the hearing the Court made directions requiring the notification of the further amended plans. 2. The parties seek agreed orders pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (the Act) that the Applicants are to pay the Respondent's costs thrown away by reason of the amendments to the plans provided on 21 May 2018 and on 24 May 2018, as agreed or assessed. 3. On the basis of these amendments Council accepts that its previous objections to the development, on planning and urban design grounds, are resolved. The parties agree in their written submissions that the only matter in contention is whether the development results in the isolation of the adjoining site at 30 Lethbridge Street. 4. As the development relies on a variation to the maximum height standard, the Court is also required to be satisfied that the variation request is well founded and worthy of support.