Land and Environment Court New South Wales Medium Neutral Citation: Aidop No. 2 Pty Ltd v North Sydney Council [2018] NSWLEC 1661 Hearing dates: 19 November 2018 Date of orders: 21 December 2018 Decision date: 21 December 2018 Jurisdiction: Class 1 Before: Chilcott C Decision: 1. The Applicant is granted leave to amend the development application and rely on the amended plans referred to in Annexure 'A' in the proceedings; 2. By consent, the appeal is upheld; 3. Development application DA 54/18, as amended, for the demolition of existing structures and the construction of a residential flat building with basement car parking at 14-20 Premier St Neutral Bay, is determined by approval, subject to the conditions of consent provided at Annexure 'A'; 4. The exhibits are returned, except Exhibits 1, 2, A and B. Catchwords: CONSENT ORDERS: Residential flat building; existing use rights; merits assessment; retention of affordable rental housing. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Environmental Planning and Assessment Regulation 2000 North Sydney Local Environment Plan 2012 State Environmental Planning Policy no. 65 – Design Quality of Residential Apartment Development State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 Saffioti v Kiama Municipal Council [2018] NSWLEC 1426 Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 Texts Cited: Apartment Design Guide (NSW Department of Planning and Environment) North Sydney Development Control Plan 2013 Category: Principal judgment Parties: Aidop No. 2 Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Counsel: C McEwen (Applicant) Solicitors: Mills Oakley (Applicant) K Gerathy with J Merlino, HWL Ebsworth Lawyers (Respondent) File Number(s): 2018/139634 Publication restriction: Nil Judgment 1. COMMISSIONER: Aidop No. 2 Pty Ltd (the Applicant) has appealed the deemed refusal of the North Sydney Council (the Respondent) of its development application DA 54/18 for the demolition of four, two-storey residential flat buildings and the construction of a residential flat building containing 36 units with basement car parking for 49 vehicles at 14-20 Premier St, Neutral Bay (the Subject Site). 2. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act). Background 1. The Subject Site is located on the western side of Premier St, between its intersections with Montpelier St to the north and Ben Boyd Rd to the south. 2. The Subject Site is zoned R2 under North Sydney LEP (NSLEP), and residential flat buildings are a prohibited use in this zone. 3. However, the Parties agreed that the Subject Site enjoys exiting use rights for residential flat buildings as a consequence of the occupation of the site by four existing developments of this type. 4. The appeal had been the subject of a conciliation conference on 13 July 2018 under s34 of the Land and Environment Court Act 1979 (LEC Act), which had not resolved contentions between the Parties, and so was terminated. 5. Following the conciliation conference, and as a consequence of further discussions between the Parties, amended plans dated 10 September 2018 were prepared and notified to land owners and residents in the area surrounding the Subject Site. 6. On 3 October 2018 the Applicant sought leave to rely on further amended plans dated 28 September 2018, and identified in the Applicant's notice of motion dated 2 October 2018. Those plans sought to address issues raised by objectors in submissions arising from the notification of the amended plans. The Applicant was granted leave to rely on those plans by the Court on 3 October 2018. 7. Those further amended plans incorporated internal changes including apartment consolidation and spatial re-planning provide, which, in the opinion of the Applicant, improved the amenity of the proposed development for future residents. These plans constitute the 'proposed development' for the purposes of this appeal. 8. The Respondent advised that it had not notified the further amended plans to land owners and residents in the area surrounding the Subject Site as the changes within those plans principally reflected internal changes, notably apartment amalgamations, and contained minimal external changes, none of which would give rise to impacts on neighbours beyond those already notified though exhibition of previous versions of the Applicant's plans. 9. The further amended plans have resulted in the following changes to the proposed development: 1. the number of residential units in the development has been reduced from 36 to 24; 2. the number of car parking spaces is reduced from 49 to 40; 3. the relocation of unit storage in the basement and the goods lift; 4. the separation of the built form by deleting a previously proposed bridging element on the upper floors so as to present two distinct buildings from Premier Street; 5. the provision of an overall 9m setback from the western boundary of the Subject Site by shifting the southern building 1.5m and the northern building 500 mm; 6. the conversion of the upper floor units of the northern building into two-storey units contained within a roof form; 7. the ridge line of the level two roof form is setback 3m from level one below; 8. the deletion of the level two upper floor penthouse unit from the southern building and its replacement with relocated communal open space; 9. the relocation of communal open space from the roof of level two to the roof of level one; 10. adjustments in the size and layout of the west facing units in the north building; 11. the provision of increased landscaping; 12. the relocation of the proposed on-site detention tank; 13. the movement of the basement to a position further away from the western boundary in order to improve the separation of the proposed development from neighbouring properties to the west, and to allow for additional deep soil planting. 1. The Parties have advised that, based on the amended plans, the contentions between them have been resolved, or are addressed satisfactorily by proposed conditions of consent and that, in their view, there are no reasons that warrant refusal of the amended proposal. They have applied for orders by consent from the Court. Application for consent orders 1. The Court's Practice Note – Class 1 Development Appeals (paragraph 99), provides as follows in relation to applications for final orders by consent of parties in circumstances where the appeal concerns the refusal of a development application: 99. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 1. During the hearing the Respondent advised that, notwithstanding its advice above at [10], it had notified all objectors on 8 November 2018 that, following the termination of the s34 conciliation conference on 13 July 2018, the appeal had been listed to be heard by the Court on 20 November 2018 in order that the Parties could apply for orders by consent, and that the hearing would commence at the Subject Site at 9:30am on that day. 2. During the on-site view, submissions were received from the following individuals, all of who were local residents: 1. Dr Sandra Tzannes, a resident of Montpelier Street, who expressed the following concerns: 1. that the shadow diagrams prepared by the Applicant were inaccurate, particularly in relation to: 1. the potential impacts of the proposed development on the rear yard, kitchen, dining, living rooms offer property 2. the accuracy of shadow diagrams prepared by the applicant which in her view had not correctly identified the location of the building at 1A Montpellier St; 3. the slope and topography of the subject site and adjoining properties; 4. the position of the sun at sunrise on 21 March, which she said had been shown in shadow diagrams as being to the south east; 1. that the design of the proposed development could be improved through a tiering of the property to reflect better the slope of land and so address issues that may arise in relation to potential overshadowing impacts. 1. Mr Brian Galway, a resident of Spruson Street, who said: 1. he was concerned about the potential impact of the proposed development on a retaining wall at the rear of his property, and in relation to which he requested a dilapidation report; 1. Ms Louise Collier and Mr Andrew Collier, residents of Montpelier Street, immediately to the rear of the Subject Site, who said: 1. they were concerned that, in their opinion,: 1. the potential impacts of construction noise had not been adequately considered within the acoustic and geotechnical reports prepared by experts in relation to the appeal; 2. the recommendations of a specialist acoustic report prepared by the firm Wilkinson Murray, and which they had commissioned with thier neighbour, Ms Lisa Connor-Brent (see below at [(4)]), had not been reflected within the draft conditions of consent prepared by North Sydney Council; 3. the noise arising from construction of the proposed development would adversely impact on her and her children as she was in the habit of working from her home from time to time; 1. the draft conditions of consent, agreed between the Parties, were reliant on the advice of acoustic experts and the preparation of a construction noise management plan in order to establish noise and vibration criteria for the construction works on the subject site, and that this was only required to be prepared prior to the issue of a construction certificate. They requested that condition C28, which addressed the timing and proposed content of the construction noise management plan, be made a deferred consent condition; 2. that the Applicant should be required to meet the costs of relocation of their family for the period of construction; 3. the construction hours applicable to the Subject Site should be amended from 8 am to 5pm, to 9am to 4pm. 1. Ms Lisa Connor-Brent, a resident of Montpelier Street, also to the rear of the Subject Site, who said that, in her opinion: 1. the rear setback of the proposed building, and its proximity to her rear boundary, were inadequate and did not meet minimum setback requirements within the North Sydney DCP; 2. the building form at its rear should be stepped rather than vertical to reflect the natural topography of the land; 3. she was unclear as to the extent of overlooking that would be possible from the proposed development into the rear of the property; 4. the presence of mature plantings on her rear boundary had not been identified within landscape plans for the Subject Site; 5. a new deferred commencement condition should be imposed, requiring that amendments be made to the architectural form of the proposed development such that its built form be stepped back at its rear elevation, and to require an amendment to the Applicant's landscape plans to identify the existence of the mature plantings on her property. 1. Ms Ariane and Mr Thomas Kiel, residents of Premier Street, who said he held concerns in relation to: 1. the future safety of the pedestrian walkway on Premier Street in relation to its proposed elevation and the use of car lifts to access the parking on the Subject Site; 2. the extent and depth of excavation required for the proposed development; 3. the height of the proposed development and implications for privacy and view loss from their property; 4. ensuring that a dilapidation report is prepared for their property. 1. Miss Jane Byron, a resident of Premier Street, who said she held concerns in relation to: 1. the presentation of the proposed development which, in her opinion, was too modern and too bulky; 2. view impacts from her balcony fronting Premier Street towards Forsyth Park; 3. increased traffic within Premier Street, and related to this the functionality of the proposed car lift within the proposed development. Ms Byron said that, in her opinion, the occupants at 2 Premier Street did not use the car lift that had been installed on that property when it was renovated; 4. the form and height of rooftop plantings proposed by the Applicant. Statutory Considerations Environmental Planning and Assessment Act 1979 1. The objects of the of the EP&A Act are as follows: (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment. 1. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 1. Section 4.15(3A) of the EP&A Act further provides that: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. 1. Sections 4.65, 4.66, 4.67 and 4.68 of the EP&A Act concerning exiting use are also of relevance in this appeal. Those sections provide as follows: 1. s 4.65 Definition of 'existing use' In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. 1. s 4.66 Continuance of use and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17(1)(b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2)(e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. 1. s 4.67 Regulations respecting existing use (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to: (a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and (b) the change of an existing use to another use, and (c) the enlargement or expansion or intensification of an existing use. (2) The provisions (in this section referred to as "the incorporated provisions") of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. (4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 4.33 to a development application for consent to carry out prohibited development. 1. s 4.68 Continuance of and limitations on other lawful uses (1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17(1)(b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2)(e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. Environmental Planning and Assessment Regulation 2000 1. In line with the provisions of s 4.67 of the EP&A Act, the Regulation makes the following provisions with respect to existing use rights, which are of particular relevance in this appeal: 1. Clause 41 Certain Development Allowed, which provides: (1) An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or (e) if it is a commercial use - be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or (f) if it is a light industrial use - be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act). (2) However, an existing use must not be changed under subclause (1)(e) or (f) unless that change: (a) involves only alterations or additions that are minor in nature, and (b) does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and (c) does not involve the rebuilding of the premises associated with the existing use, and (d) does not involve a significant intensification of that existing use. (3) In this clause: "commercial use" means the use of a building, work or land for the purpose of office premises, business premises or retail premises (as those terms are defined in the Standard Instrument). "light industrial use" means the use of a building, work or land for the purpose of light industry (within the meaning of the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006). 1. Because the Applicant's proposed development is such that the existing use as a residential flat building is to be enlarged, expanded or intensified, then, as a consequence, pursuant to cl 41(1)(a) of the Regulation, the application is subject to the provisions of cl 42 of the Regulation. 1. Clause 42 provides: (1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification: (a) must be for the existing use and for no other use, and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date. State Environmental Planning Policy no. 65 – Design Quality of Residential Apartment Development and the Apartment Design Guide 1. The provisions of State Environmental Planning Policy no. 65 – Design Quality of Residential Apartment Development (SEPP 65) which aims to improve the design quality of residential apartment development in NSW, is a consideration in the merit assessment of the Applicant's proposed development. 2. The Apartment Design Guide (ADG), published by the NSW Department of Planning and Environment, explains how to apply SEPP 65's design principles to the design of new apartments. State Environmental Planning Policy (Affordable Rental Housing) 2009 1. The Parties advise that the Subject Site is subject to the provisions of Part 3 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) concerning the retention of existing affordable rental housing in the Sydney region within buildings that were low-rental residential buildings as at 28 January 2000. North Sydney Local Environment Plan 2012 1. Development on the Subject Site is subject to the provisions of North Sydney Local Environmental Plan 2012 (NSLEP), and under which the Subject Site is zoned R2 Low Density Residential. Within this zone, a residential flat building such as is proposed by the Applicant is not permissible. 2. Notwithstanding that a residential flat building is not permissible on land zoned R2 under NSLEP, the Subject Site enjoys exiting use rights as it is currently occupied by four residential flat buildings, and that use is consistent with the definition of existing use under s 4.67 of the EP&A Act. 3. As a further consequence of c 4.67(3) of the EP&A Act, any provisions (other than incorporated provisions) in such an environmental planning instrument, such as NSLEP, that would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. The incorporated provisions are those within the cll 41 and 42 of the EP&A Regulation relating to existing use rights (see above at [20] and [21]. 4. As the proposed development represents an enlargement of the existing use, then, in line with the provisions of cl 42 of the EP&A Regulation (see above at [21]), development consent is required for the proposed development. North Sydney Development Control Plan 2013 1. Notwithstanding the existing use rights enjoyed by the Applicant on the Subject Site, development on the site is subject to the provisions of the North Sydney Development Control Plan 2013 (NSDCP). The following provisions of Part B of NSDCP are of particular relevance in this appeal: 1. Section 1.3.6, concerning views, the objectives of which are: O1 To protect and enhance opportunities for vistas and views from streets and other public places. O2 To encourage view sharing as a means of ensuring equitable access to views from dwellings, whilst recognising development may take place in accordance with the other provisions of this DCP and the LEP. 1. Section 1.3.7, concerning solar access, the objective of which is: O1 To ensure that all dwellings have reasonable access to sunlight and daylight. 1. Section 1.3.10, concerning visual privacy, the objective of which is: O1 To ensure that existing and future residents are provided with a reasonable level of visual privacy. 1. Section 1.4.6, concerning setbacks, the objectives of which are: O1 To reinforce the characteristic pattern of setbacks and building orientation within the street. O2 To control the bulk and scale of buildings. O3 To provide separation between buildings. O4 To preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of shadowing, privacy, views, ventilation and solar access. 1. Section 1.4.7, concerning form, massing and scale, the objective of which is: O1 To ensure the size of new buildings are consistent with surrounding, characteristic buildings and they are not significantly larger than characteristic buildings. 1. Section, 1.5.4, concerning vehicular access and parking, the objectives of which are: O1 To provide adequate on-site car parking for residents. O2 To ensure adequate access for all vehicles. O3 To maintain garden settings. O4 To minimise adverse visual impacts on the appearance of the street or building. 1. Section 1.5.5, concerning site coverage, the objectives of which are: O1 To ensure that development is balanced and in keeping with the optimum capacity of the site with no over development. O2 To ensure that development promotes the existing or desired future character of the neighbourhood. O3 To control site density. O4 To limit the building footprint so as to ensure adequate provision is made for landscaped area and private open space. 1. Section 1.5.6, concerning landscape area, the objective of which is: O1 The specific objectives of the landscaped area controls are to: (a) promote the character of the neighbourhood; (b) provide useable private open space for the enjoyment of residents; (c) provide a landscaped buffer between adjoining properties; (d) maximise retention and absorption of surface drainage water on site; (e) minimise obstruction to the underground flow of water; (f) promote substantial landscaping, that includes the planting of trees that when mature will have significant canopy cover; (g) control site density; (h) minimise site disturbance; (i) contributes to streetscape and amenity; (j) allows light to penetrate between buildings; (k) encourage the provision of space for biodiversity conservation and ecological processes; and (l) provide a buffer between bushland areas and development. 1. Section 1.5.7, concerning excavation, O1 To retain existing vegetation and allow for new substantial vegetation and trees. O2 To minimise the adverse effects of excavation on the amenity of neighbouring properties. O3 To minimise excavation and site disturbance so as to retain natural landforms, natural rock faces, sandstone retaining walls and the like and to retain natural water runoff patterns and underground water table and flow patterns. O4 To ensure the structural integrity of adjoining properties. O5 To minimise adverse effects of adjoining transport infrastructure. 1. Section 1.5.8, concerning landscaping, O1 Landscaping and planting satisfies minimum performance standards and is sustainable and appropriate to the site. O2 Landscaping should not adversely impact upon the amenity and usability of adjoining properties. O3 To encourage biodiversity conservation and ecological processes. O4 To provide a buffer between bushland and development. Contentions 1. As noted above at [12], the Parties come to the Court and advise that, on the basis of the further amended plans, and agreed conditions of consent, all contentions between them have been satisfactorily addressed. The Respondent has further confirmed its conclusion that there remained no contention that would form a basis for the Applicant's development application to be refused. 2. During the hearing, submissions were provided by the Parties in relation to the matters that had been in contention between them, and evidence was provided by the expert planners, Mr Anthony Boutros, for the Applicant, and Mr Geoff Mossemenear, for the Respondent, to supplement the submissions of the Parties. 3. The Parties confirmed that the provisions of Part 3 of the SEPP ARH in relation to the retention of affordable rental housing had been satisfied through the inclusion of Conditions B1 and B2 of the proposed draft conditions of consent tendered as evidence during the hearing. 4. Having considered the submissions of the parties in relation to SEPP ARH, I agree with them that the requirements of Part 3 of SEPP ARH, which are pre-condition to the grant of consent in this matter, have been satisfied. 5. The expert planners had prepared a joint report that was tendered as evidence during the hearing. In that report, the experts had agreed that the further amended plans prepared by the Applicant provided a built form that was 'acceptable in its context', provided acceptable levels of internal amenity and gave rise to 'no unreasonable external impacts' in relation to issues raised by objectors in their submissions. 6. The expert planners also confirmed in their joint expert report that there were no points of disagreement between them that would be determinative in this appeal. 7. They further confirmed that in their expert opinion the further amended plans and associated conditions of consent were acceptable for the proposed existing use development on the Subject Site, and would adequately protect the amenity of neighbouring properties during excavation, construction and post-construction phases of the proposed development. 8. The expert planners provided oral evidence to address both the merits assessment of the proposed development under the provisions of s 4.15 of the EP&A Act, and specific matters raised by objectors in their submissions and during the on-site view, as follows: Bulk and scale 1. The expert planners agreed that the bulk and scale of the proposed development had been significantly reduced compared to that which had been originally proposed by the Applicant. 2. Mr Mossemenear said that his main concerns with previous versions of the proposed development had been addressed through a reduction in height of both the northern and southern sections of the proposed residential flat building, and the provision of increased setbacks from the western boundary of the Subject Site, particularly at the upper levels. 3. He noted that the western elevation now has a three and four story wall height close to the boundary with upper levels set back further to reduce the scale and potential impacts of the proposed development in relation to overshadowing and privacy concerns. 4. Mr Mossemenear said that a 3m separation had been provided on the upper levels between the northern and southern sections of the proposed development, and that indents and articulation on the eastern elevation, together with the 6m side setbacks provided, would all assist to reduce the scale of the proposed development and ensure that it sat more suitably within the context of its surroundings. 5. He also said that the streetscape scale of the proposed development had been improved as the further amended plans provided an elevation to Premier Street that was 'about half a level above the ridge heights of the existing buildings on the site' and that this resulted in a part single story part two Storey presentation to Premier Street. 6. Mr Betros concurred with the comments of Mr Mossemenear, and added that the reduced basement footprint had enabled the retention of existing significant mature vegetation on the Subject Site also allowing for further additional vegetation plantings. 7. He said that the combination of increased deep soil landscaping, the reduction in height of the proposed building, and the increased setbacks had significantly reduce the visual bulk of the proposed development as viewed from surrounding properties and the streetscape.. 8. Mr Betros had further observed in the joint report that the properties to the west of the Subject Site had their primary aspects and outlook to the west, towards North Sydney CBD and across to Forsyth Park. He noted that the rear of those properties to the west of the Subject Site contained private open space, and that three of the four adjoining properties had established screen plantings or structures that would assist to minimise the perceived bulk of the proposed residential flat building on the Subject Site. 9. Mr Betros concluded that the reduction in the proposed height of the development, achieved through the removal of a storey from the development, along with the provision of a new upper level within the roof form, with no lift overrun, together with an increased separation between the northern and southern built forms and deep soil plantings along the side setbacks, had, in his opinion, sufficiently addressed bulk and scale concerns related to the proposed development. 10. I concur with the opinion of the experts that the amended plans for the proposed development have satisfactorily addressed the contention in relation to bulk and scale of the proposed development, and agree that the proposed development has achieved the objectives of NSDCP Section 1.4.7 (see above at [29(5)]) in relation to form, massing and scale. Height 1. As the Subject Site enjoys existing use rights for a residential flat building, which is not a permissible form of development within the R2 zone applicable to the Subject Site, the height controls within NSLEP are not applicable to the proposed development as they would derogate from the Applicant's existing use rights. 2. Mr Mossemenear said that under the provisions of NSLEP, a residential flat building would be expected to comply with a height limit of 12m, measured from the existing ground level. He noted that the topography of the Subject Site varied across its length. As a consequence, he said that achieving a consistent height of building level within the proposed development was not to be expected. He noted that the height of the proposed development at various points across the Subject Site was as follows: 1. the maximum height of the north-west section is between 12.5m and 13.5m along the ridge of the roof over the fifth level of the proposed building; 2. the maximum height of the south-west section is 12m; 3. the maximum height of the north-east section along the ridge of roof over the fifth level is between 11m and 12.5m; 4. the maximum height of the south-east section is between 9.5m and 11m. 1. Mr Mossemenear said that, in his opinion, the height of the proposed development was reasonable in relation to the circumstances of the Subject Site, and its context in relation to its surroundings, including the scale of the proposed building at all boundaries. 2. Within the joint report, Mr Betros had said that the reduced height of the proposed development, compared with the height of the originally proposed development, reasonably retained solar access to living areas and private open areas of the dwellings to the south and west of the Subject Site, such that these were in accordance with the provisions of NSDCP Section 1.3.7 (see above at [29(2)]), and I accept this conclusion. 3. Mr Betros also said that the height of the proposed development under the further amended plans that were the subject of this appeal maintained the views across the Subject Site from the residential apartments on the opposite side of Premier Street to Forsyth Park, the North Sydney CBD and the harbour bridge to the south-west. 4. During the on-site view, an inspection was made of the residence of Ms Ariane and Mr Thomas Kiel. During this view I was able to establish that the rear of the proposed development would not interrupt the principle views enjoyed by the Kriels towards the south, which included a view to the Sydney Harbour Bridge. 5. Mr Betros concluded that, in his opinion, no iconic views had been affected by the proposed development and that the height of the proposed residential flat building was acceptable. I concur with this assessment. Landscaping and tree removal 1. Mr Mossemenear reported in the joint report of the expert planners that North Sydney Council's landscape officer was satisfied with the Applicant's revised landscape plans that accompanied the further amended plans. He said that this included the Applicant's proposal for the retention of the significant tree, identified as Tree 25, in the south-western corner of the Subject Site which had previously been proposed for removal. He noted that this outcome had been achieved through the Applicant providing an increase to the rear setback of the southern building within the proposed development. 2. Mr Betros said that the increases in the side and rear setbacks provided within the further amended plans had facilitated the opportunity for enhanced deep soil planting and canopy trees as part of the proposed development. 3. The expert planners agreed that the amended proposal, including the amended landscape plan, had adequately addressed issues raised by neighbours in relation to the loss of trees. 4. As noted above at [15(4)], Ms Lisa Connor-Brent had said during the site inspection that the landscape plans prepared by the Applicant did not recognise the presence of vegetation along the boundary with the Subject Site. She requested that the Applicant's proposed Tree Protection and Management Plan be required to reflect the plantings along the boundary of the property adjacent to the Subject Site and to ensure that the proposed development included specific requirements to ensure that these plantings would not impacted by the construction works associated with the proposed development. 5. The Applicant agreed to include the following requirement as an amendment to Condition A3: The Tree Protection and Management Plan is also to identify the location and species of trees on the boundary of 7 and 9 Montpellier Street adjoining the site and the measures proposed to ensure they are protected during construction. 1. Based on the testimony of the expert planners, which I accept, and the reasons therein, I am satisfied that the amended plans have achieved the objectives of NSDCP sections 1.5.6 (see above at [29(8)]) and 1.5.8 (see above at [29(10)]) concerning landscape area and landscaping. Visual privacy, view loss and amenity 1. The expert planners had said in their joint expert report that the building separations provided by the amended plans were acceptable and, together with the use of elevated planters and privacy screens achieved, the visual privacy objective of NSDCP section 1.3.10 (see above at [29(3)]). 2. Mr Mossemenear and Mr Betros had also noted that the combination of vegetation proposed for retention on the Subject Site together with vegetation along the boundary of properties located to the west of the proposed development, would further assist to screen or filter any potential visual privacy impacts for the proposed development. 3. The expert planners agreed that the height of the proposed development, as represented within the further amended plans, had mitigated the potential impact of the proposed development on views from dwellings in residential apartments to the east of the Subject Site on the opposite side of Premier Street, and from the rear of the Kriel residence adjacent to the Subject Site (see above at [53]). 4. Mr Mossemenear said that the 6m side setbacks of the proposed development and the separation of the northern and southern buildings had ensured the visual privacy of residents and had also facilitated the retention of slot views to Forsyth Park from the public space within Premier Street. 5. Mr Mossemenear added that there would be some loss of non-iconic views across the proposed development to Forsyth Park from the residence of Mrs Jane Byron on the opposite side of Premier Street. However he noted that any loss of view arising from this perspective arose from elements of the proposed building that were below the 12m height level of the roof line that might be expected from a compliant residential flat building under NSLEP. 6. He said that views of the North Sydney skyline from this residence had been retained, and that the impact on views from the proposed development did not, in his opinion, warrant refusal of the application or further amendments to the design of the upper levels of the proposed development. 7. Based on the testimony of the expert planners, which I adopt, and particularly the evidence of Mr Mossemenear on behalf of the Respondent, I am satisfied that the amended plans for the proposed development have achieved the objectives of NSDCP section 1.3.6 (see above at [29(1)]). 8. Based on the testimony of the expert planners, I am satisfied that the amended plans achieve the objectives of NSDCP section 1.3.10 in relation to visual privacy (see above at [29(3)]), and section 1.3.6 concerning potential view impacts (see above at [29(1)]), and related potential amenity impacts. Design principles – SEPP 65 1. The Applicant had submitted within its Statement of Facts and Contentions in Reply, that Pain J had found in Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 at [95] (Stromness) that s108(3) [now s4.67] of the EP&A Act prevents the application of SEPP 65 as a basis for refusing an application relying on existing use rights. 2. However, Pain J had also said that the provisions of SEPP 65 can guide a merit assessment of a proposed existing use rights development as it is raises matters that should otherwise be considered on a merit assessment of a residential flat building under the former s 79C (now s 4.15) of the EP&A Act no matter where it is located, and that the SEPP 65 design principles may be used to assist in the merit assessment of the application although they are not to be used as a basis for refusing the application. 3. The Applicant had submitted, and the Respondent did not challenge, that despite the absence of numerical controls applicable to the proposed development as an existing use rights development, the proposed development would provide solar access and natural ventilation in excess of the ADG requirements, demonstrating that it had acceptable levels of amenity consistent with the fourth principle in the Fodor judgment (see below at [99(4)]). 4. Further, the Applicant had submitted, and the Respondent did not disagree, that the proposed development has considered the design principles within SEPP 65 as follows: Context and neighbourhood character (i) The development is perceived as two storeys in height (plus lift over-run) when viewed from Premier Street and as such is consistent with the existing and desired character of Premier Street. The development is compatible with the buildings in the locality. (ii) The development for the purposes of a Residential Flat Building (RFB) is consistent with the numerous surrounding RFB's in the locality, and other RFB development in the R2 Low Density zone which has relied on existing use rights and is therefore consistent with the character of the surrounding land uses. Built form and scale (i) The development incorporates two building envelopes, visually separated by a glazed walkway to ensure that the building does not result in adverse bulk and scale impacts. The built form and scale of the development is appropriate in the context of the surrounding locality and reflects the existing character of buildings within the street. (ii) The development incorporates large side setbacks, generally in excess of the surrounding development in the locality. (iii) The development will accommodate significant landscape planting commensurate with the surrounding locality. Density (i) Due to the large site area and steep topography most of the density proposed on the site cannot be seen form the street and is not visible form the public domain. The design and density of the development is appropriate. No adverse amenity in terms of traffic or privacy impacts are associated with density. Landscape (i) The development provides 40% of the site area as deep soil landscaping, commensurate with the desired and existing character of the locality. Amenity (i) The development provides setbacks to the surrounding buildings that are greater than the existing development on the site. Privacy is appropriately mitigated through screening and landscaping. Housing diversity and social interaction (i) The ADG requirements for communal open space do not apply to the development. The provision of communal open space is of a higher quality than that provided by the surrounding development and comprises 28% of the site area, being an adequate and high quality area. Aesthetics (i) The development comprises a high quality architectural response to the site and locality and is combined with a detailed landscape design. 1. During the hearing, Mr Mossemenear said that the proposed development achieved the requirement of the ADG that the site coverage of a residential flat building should not exceed 45% of the Subject Site. He noted that this control is consistent with the provisions of NSDCP section 1.5.5 concerning site coverage. 2. Based on the evidence of the expert planners, and for the reasons contained therein, I am satisfied that the Applicant has satisfied the merits considerations required to be addressed in this appeal in relation to SEPP 65 and the ADG, and also achieves the objectives of NSDCP section 1.5.5 (see above at [29(7)]) concerning site coverage. Setbacks 1. In the joint report of the expert planners Mr Betros had said that the amended plans had significantly increased the basement and above ground setbacks of the proposed development compared with earlier versions of the development, and that the front setbacks were compatible with the setbacks of other buildings in Premier St. 2. Mr Mossemenear said that the setbacks of the proposed development satisfied the Respondent's principle objective for a minimum 6m setback at the side and rear of Subject Site, and that the proposed setbacks did not warrant refusal of the application or further amendment to the design of the development. 3. Based on the evidence of the expert planners, with which I concur, and for the reasons contained therein, I am satisfied that the objectives and provisions of NSDCP with respect to setbacks (see above at [29(4)]) have been achieved. Vehicle access and parking 1. Mr Mossemenear said that, under the provisions of NSDCP section 1.5.4, the recommended number of car spaces for the proposed development, which included 24 apartments, was a maximum of 36 places (including the visitor parking), and he noted that the further amended plans made provision for a total of 46 spaces, including six tandem spaces. 2. Mr Betros confirmed that the traffic report accompanying the Applicant's development application had demonstrated that the surrounding network was capable of accommodating the traffic that would be generated from the proposed development. 3. Finally Mr Mossemenear said that the proposed dual car lift system was, in his opinion, suitable for sites with less than 30 apartments and that on-site queuing space would not be required within the design of the basement. He said that the dual car lift proposed would facilitate continued use of the basement car parking area should there be a mechanical fault with one of the lifts or a lift was being serviced. 4. Based on the evidence of the expert planners, with which I concur, and for reasons contained therein, I am satisfied that the amended plans have adequately addressed the objectives and provisions of NSDCP in relation to traffic, vehicle access and parking, including those in section 1.5.4 (see above at [29(6)]). Excavation, Noise and Vibration 1. In the joint report of the expert planners, Mr Betros said that the Applicant's further amended plans had reduced the proposed extent and timeframe for excavation works on the Subject Site. 2. Mr Mossemenear said the Parties' agreed, without prejudice, conditions of consent included conditions of consent consistent with those imposed by North Sydney Council in developments of a similar nature and scale. Those conditions included: 1. Condition B3 (previously B1), requiring that prior to issue of a Construction Certificate for demolition or excavation, a Construction and Traffic Management Plan must be prepared by the Applicant addressing an range of specific issues identified in the condition; 2. Condition C2, requiring preparation of a full dilapidation survey and report on the visible and structural condition of all neighbouring structures within the 'zone of influence' of the required excavations; 3. Condition C3, requiring a photographic survey and dilapidation report of adjoining properties Nos. 12, 22 and 24 Premier Street and Nos. 1a, 5, 7 and 9 Montpellier Street detailing the physical condition of those properties, both internally and externally, including, but not limited to, such items as walls, ceilings, roof, structural members and other similar items; 4. Condition C5, requiring a report, prepared by an appropriately qualified and practising structural engineer, detailing the structural adequacy of adjoining properties (Nos. 12 and 22 Premier Street), and retaining walls near the western boundary of Nos. 1a, 5, 7 and 9 Montpellier Street and No.63 Spruson Street, and which certifies their ability to withstand the proposed excavation as well as outlining any measures required to be implemented to ensure that no damage will occur to adjoining properties during the course of the works; 5. Condition C6, requiring that prior to issue of any Construction Certificate a Geotechnical/Civil Engineering report must be prepared addressing a range of issues specified in the condition; 6. Condition C28, requiring that a Construction Noise Management Plan (CNMP) must be prepared by an appropriately qualified acoustical consultant eligible for membership of the Association of Australian Acoustic Consultants, and which must include the following: 1. identification of noise affected receivers near to the site; 2. a prediction as to the level of noise impact at noise affected receivers from the use and proposed number of high noise intrusive appliances intended to be operated onsite; 3. details of work schedules for all construction phases; 4. a statement should also be submitted outlining whether or not predicted noise levels will comply with the noise criteria stated within the Department of Environment and Climate Change's Interim Construction Noise Guideline (ICNG); 5. representative background noise levels should be submitted in accordance with the ICNG; 6. confirmation of the level of community consultation that is to be undertaken by occupants at noise affected receivers likely to be most affected by site works and the operation of plant/machinery particularly during the demolition and excavation phases; 7. confirmation of noise monitoring methodology that is to be undertaken during the noise intensive stages of work including details of monitoring to be undertaken at the boundary of any noise affected receiver; 8. what course of action will be undertaken following receipt of a complaint concerning offensive noise; 9. details of any noise mitigation measures that have been outlined by an acoustic consultant or otherwise that will be deployed on site to reduce noise impacts on the occupants at noise affected receivers; 10. details of selection criteria for any plant or equipment that is to be used on site, the level of sound mitigation measures to be undertaken in each case and the criteria adopted in their selection taking into account the likely noise impacts on occupants at noise affected receivers and other less intrusive technologies available; and 11. details of site induction to be carried out for all employees and contractors undertaking work at the site; 1. Condition E8, requiring the following in relation to dust emissions and air quality: 1. materials must not be burnt on the site; 2. vehicles entering and leaving the site with soil or fill material must be covered; 3. dust suppression measures must be carried out to minimise wind-borne emissions in accordance with the NSW Department of Housing's 1998 guidelines - Managing Urban Stormwater: Soils and Construction; 4. odour suppression measures must also be carried out where appropriate so as to prevent nuisance occurring at adjoining properties; 1. Condition E9, requiring that all works must be undertaken in accordance with the ICNG, to ensure excessive levels of noise and vibration do not occur so as to minimise adverse effects experienced on any adjoining land; 2. Condition E14, requiring that: 1. building construction and works must be restricted to within the hours of 7.00 am to 5.00 pm Monday to Friday and on Saturday to within the hours of 8.00 am to 1.00 pm inclusive, with no work on Sundays and Public Holidays; 2. demolition and excavation works must be restricted to within the hours of 8.00 am to 5.00 pm Monday to Friday only. 1. The Respondent said that: 1. the restriction of the building and construction works, and the demolition and excavation works, to the hours identified in proposed condition E14 were more limited than those normally imposed by Council; and 2. the hours identified in proposed condition E14 were more limited than those required under the ICNG; and 3. the hours identified in proposed condition E14 represented a concession to the submissions of neighbours seeking that the condition of consent for the proposed development provide mitigation of potential noise and vibration impacts. 1. In response to questions put to the planning experts during the hearing, Mr Mossemenear said that: 1. it is the standard practice of North Sydney Council to require: 1. that the CNMP should be prepared by the Applicant's acoustic consultant prior to the issue of a Construction Certificate; and 2. approval of the CNMP by the Principal Certifying Authority (PCA) for the proposed development; 3. that the PCA provided a copy of the CNMP to Council for its records and in relation to management of any noise and vibration related issues that might arise from the proposed development; 1. it is not the standard practice of North Sydney Council to act as the approval entity for construction noise management plans as this would require Council to engage specialist advisors to assess the adequacy of the plan, and Council did not have the financial resources to support engagement of such expertise for projects. 1. As noted above at [15(3) and 15(4)], neighbouring property owners Ms Louise and Mr Andrew Collier, along with Ms Connor-Brent, had commissioned a report from the firm of Wilkinson Murray that provided a review of the Applicant's acoustic report prepared by Acoustic Logic, and which had made a series of recommendations for the management of potential noise and vibration impacts that may arise from the proposed development. They requested that: 1. the recommendations of Wilkinson Murray be reflected in the final conditions of consent for the proposed development; and 2. preparation of the CNMP be made a requirement of a deferred commencement condition should the proposed development receive consent. 1. The Respondent said that it did not support these proposals because: 1. the Wilkinson Murray recommendations did not, and could not, take account of: 1. the draft conditions of consent agreed between the Parties, including the proposed hours of work applicable to the proposed development which were more constrained than those recommended in the ICNG; 2. the final excavation methodology to be used on the Subject Site, and potential impacts arising therefrom, as these details would only be available following the appointment of an excavation contractor. 1. the requirement that the CNMP be prepared prior to the issue of a construction certificate would be sufficient to ensure that the arrangements for mitigation of potential noise and vibration impacts were confirmed in advance of any construction work, and would align with the final methodology adopted for excavation works proposed by the excavation contractor. 1. Having considered these submissions, I agree with the Respondent that it is appropriate, and sufficient, that the CNMP should be prepared by the Applicant prior to the issue of a construction certificate that would be required for any works to commence on site, including excavation works. 2. The Respondent submitted during the hearing that, in circumstances where noise levels exceeded the highly noise affected level of 75dB(A), the inclusion of respite periods, agreed with the neighbours, could be included in the CNMP, including in circumstances where rock hammers are proposed to be used for excavation works. 3. In recognition of this submission, and reflective of the Parties agreement under draft condition E9 that all works must be undertaken in accordance with the ICNG, I have proposed, and the Parties have agreed, that a further specific condition [to be identified in the final condition of consent as Condition 28(f)(i)] be added to proposed Condition 28 to reflect the requirements of the ICNG, as follows: (f)(i) Consistent with the guidance in the ICNG, a commitment to the following: a. Where the predicted or measured LAeq(15 min) is greater than the noise affected level (RBL+10dB), the applicant should apply all feasible and reasonable work practices to meet the noise affected level. b. For noise affected levels (RBL+10dB, or above), the applicant should inform all potentially impacted residents of the nature of works to be carried out, the expected noise levels and duration, as well as provide contact details for further enquiries. c. Where noise is above the highly noise affected level of 75dB(A) level, provision for respite periods restricting the hours that the very noisy activities can occur, taking into account: 1. times identified by the community when they are less sensitive to noise (such as before and after school for works near schools, or mid-morning or mid-afternoon for works near residences); 2. if the community is prepared to accept a longer period of construction in exchange for restrictions on construction times. 1. Based on the evidence and reasons of the expert planners, which I adopt, that the contentions of the Parties with respect to excavation, including construction noise and vibration, have been satisfactorily addressed through the amended plans, together with the proposed, agreed, conditions of consent discussed above, I am satisfied that the Applicant's proposed development has achieved the objectives of NSDCP section 1.5.7 in relation to excavation (see above at [29(9)]). Overshadowing 1. Both expert planners agreed that the plans and diagrams prepared by the Applicant that had been used to assess the potential overshadowing impacts of the proposed development indicated that neighbouring properties, including those to the south of the Subject Site at 10 and 12 Premier Street, the property at 63 Spruson Street, and properties to the west on Montpelier Street, all retained levels of solar access in compliance with objectives and provisions of NSDCP section 1.3.7 (see above at [29(2)]). 2. Mr Mossemenear also confirmed within the joint report that those portions of the roof of the proposed development that were over 12m in height would not give rise to any overshadowing impacts on the rear yards of numbers 5 and 7 Montpelier Street. 3. In response from a submission from Dr Sandra Tzannes (see above at [15(1)] concerning the accuracy of the Applicant's shadow diagrams and the implications of these in relation to properties on Montpelier Street, the planning experts agreed that, following a review of those diagrams, the predicted shadow impacts of the proposed development were accurate. The Parties' submissions in relation to existing use rights 1. As noted above at [4], the Parties agreed that the Applicant enjoyed existing use rights on the Subject Site such that its proposed construction of a residential flat building could be granted consent despite this form of development being prohibited development under the provisions of NSLEP on land zoned R2 Low Density Residential. 2. Under the provisions of s4.67(3) of the EP&A Act any provisions (other than incorporated provisions) of NSLEP that would derogate or have the effect of derogating from the Applicant's existing use rights recognised under cll 41 and 42 of the EP&A Regulation, the so-called incorporated provisions, have no force or effect while the incorporated provisions remain in force. 3. Consequently, the height and floors space ratio controls within NSLEP as they relate to the R2 zone, and which would derogate from the Applicant's existing use rights, have no force or effect in this appeal. 4. The Parties agreed that, notwithstanding the existing use rights enjoyed by the Applicant on the Subject Site, the proposed development should nevertheless be subject to a merits assessment as required under s 4.15 of the EP&A Act, and that this assessment should be consistent with the principles identified in judgments of the Court concerning the merits assessment of proposals that rely on existing use rights, notably the judgments of: 1. Roseth SC in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 (referred to hereafter simply as Fodor); and 2. Pain J in Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 (referred to hereafter simply as Stromness). 1. In the Fodor judgement, the former Senior Commissioner identified four principles in relation to the assessment of .development applications based on existing use rights, and which he expressed as questions, as follows: 1. How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites? 2. What is the relevance of the building in which the existing use takes place? 3. What re the impacts on the adjoining land? 4. What is the internal amenity? 1. The expert planners confirmed in their oral testimony during the hearing, and I agree, that assessment of the proposed development which they had undertaken, as described above at [34] to [94], was consistent with the principles for assessment of a proposed development based on existing use rights as identified by the former Senior Commissioner in Fodor. 2. In Stromness, Pain J said [at 86] that the planning principles in Fodor are not legally binding, and that the planning principles are intended as guidelines to assist the resolution of issues that commonly arise in merits review cases. She also said that the principles must not be applied if they result in a misapplication of the EP&A Act provisions concerning existing use rights such as the former s 108(3) now s 4.67(3) (see above at [19(3)]). 3. Pain J also stated [at 89] that: 1. consistent with the first principle in Fodor (see above at [99(1)]), it is acceptable to consider the relevant planning instruments as these apply to the area surrounding the proposed development because these determine the nature of development in that area; 2. that principle is 'not inconsistent' with s 108(3) [now s 4.67(3)]; but 3. care must be exercised against the possibility that such an assessment leads to a de facto application of standards in environmental planning instruments to the existing use rights of the site. 4. failure to comply with standards in an environmental planning instrument cannot be a consideration in the assessment of an application based on existing use rights. 1. The planning experts said in their testimony at the hearing that the development standards applicable to a residential flat building under the R4 zone in NSLEP, which is the zoning applicable to land located opposite the subject site on Premier St, had been used as a guide in assessing the proposed development. 2. In his testimony, Mr Mossmenear said (Tcpt 20 November 2018 p 12 (3 to 11): I did an assessment report to the local planning panel with a recommendation for refusal on that basis because I was concerned about the height of the proposal, the extent of development, the lack of retention of trees, the landscaping provisions. We had issues regarding the footpath at the front there whether that would work because the original details had that footpath going past other properties at a much higher rate that denied access to those properties. So we had a number of concerns with the proposal, the bulk and scale, and that was the recommendation for refusal that we put to the local planning panel. 1. However, Mr Mossemenear went on to say (Tcpt 20 November 2018 p 12 (21 to 28), in response to a question from the Respondent and in relation to the proposed development that is the subject of this appeal: … I used (sic) was looking at the scale of the development, the setbacks, the reduction in height, the impacts of the retention of the trees, the additional basement setback to get some soft landscaping there. We resolved the issue with the engineering concerns about the footpaths and the access to the site and when I looked at the reduction in the overall scale I did a rough calculation of the original plans, the FSR was around about 1.7:1 where it's now done to about 1.4:1, which is about 600-odd square metres less floor space. 1. He further said (Tcpt 20 November 2018 p 12 (35 to 43) that: In the joint report I go through the height and the setbacks and all those but basically the majority of the building is under 12 metres in height, other than for a small section, which is the control in the R4 zone across the road, but that's the normal control for residential flat buildings and the site cover met that criteria and where it was over the height it was basically at the roof section, which doesn't have balconies, doesn't cause privacy concerns, because they're bedrooms and only windows off there and they're set back. So that didn't have an impact to warrant further, further change or refusal. 1. Finally, in response to a question from the Court during the hearing, Mr Mossemenear responded (Tcpt 20 November 2018 p 13 (22 to 43): Three basic controls for residential flat buildings, be (sic) a 45% site cover, 12 metre height control and where it's at 12 metres height you look at the side and rear setbacks that would form the 3.6(m setback) at the boundary and a 45 degree height plan and the setbacks at the western boundary at the rear there comply with - basically comply with that. I think the closest point is 6 metres away, that would allow a height of 9.6 metres at that point, (and) it's 10 metres at that closest point but the rest of the wall is setback further. So there might be a minor non-compliance which you'd probably expect in any application in R4 zone but basically the setbacks comply with the requirements for a flat building. The site cover and generally the height and particularly when you've got a sloping site like this, as we've gone through in the comments in the joint report, the height is lower at the front of the site as it slopes down because there's only three storeys high, it starts at about 9 metres and goes down to 10 metres at the back wall. But with the roof area it's about 13.5(m) so as you slope down the site, because the height's taken from the existing ground level, you will get that sort of breach of height controls of a minor degree on a sloping site to get a reasonable floorplate. 1. I note that s 4.67(3) of the EP&A Act provides that: An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. 1. However, I also note, consistent with my decision in the matter of Saffioti v Kiama Municipal Council [2018] NSWLEC 1426 (at [86]) that no provision of a development control plan could be said to derogate from the Applicant's exiting use rights as a development control plan (DCP) is not an environmental planning instrument for the purposes of the EP&A Act, under s 1.4 of that Act, and so the provisions of a DCP cannot derogate in the manner prescribed in s 4.67(3). Consequently, the provisions of NSDCP, as they apply to the Applicant's proposed development, must be a consideration in the evaluation of the proposed development under s 4.15 of the EP&A Act. 2. It is my opinion that the assessment of the proposed development undertaken by the planning experts, utilising the standards for a residential flat building in a R4 zone under NSLEP, and having considered the requirements of NSDCP (see above at [29]), has been undertaken appropriately and sensitively, consistent with the requirements of s 4.15 of the EP&A Act, mindful of principles established by the Court in Fodor and Stromness, and has not resulted in any misapplication of the EP&A Act provisions concerning existing use rights including those in s 4.67(3) of the EP&A Act. Conclusions 1. Having considered the submissions of local residents made during the site view, the submissions of the Parties, and the evidence of the expert planners, I am satisfied that: 1. the assessment of the proposed development has established that it is consistent with the existing use rights enjoyed by the Applicant in relation to the Subject Site; 2. the proposed conditions of consent satisfy the requirements of Part 3 of SEPP ARH which apply to the proposed development; 3. the Applicant's further amended plans, for which leave was granted by the Court, together with the proposed draft conditions of consent, which were agreed by the Parties at the hearing, and with the further condition proposed above at [90], have addressed the matters which I am required to consider under s 4.15 of the EP&A Act, such that I can determine the Applicant's development application; 4. the proposed development is in the public interest; 5. the Applicant's development application DA 54/18 for the demolition of four, two-storey residential flat buildings and the construction of a residential flat building with 24 units and associated features described above at [11] should be approved; Orders 1. The orders of the Court are: 1. the Applicant is granted leave to amend the development application and rely on the amended plans referred to in Annexure 'A' to this judgment; 2. by consent, the appeal is upheld; 3. development application DA 54/18, as amended, for the demolition of existing structures and the construction of a residential flat building with basement car parking at 14-20 Premier St Neutral Bay, is determined by approval, subject to the conditions of consent provided at Annexure 'A'; 4. The exhibits are returned, except Exhibits 1, 2, A and B. ………………………. Michael Chilcott Commissioner of the Court Annexure A (C) ********** 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: 21 December 2018