Land and Environment Court New South Wales Medium Neutral Citation: Group HIS Pty Ltd v Inner West Council [2019] NSWLEC 1089 Hearing dates: 21 February 2019 Date of orders: 07 March 2019 Decision date: 07 March 2019 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The appeal is dismissed. (2) Development Application 2017/151.1 which seeks to demolish existing structures and construct a three storey private hospital including medical suites and kiosk, in addition to two basement levels for parking on Lot 4 DP 601158, also known as 113 Dobroyd Parade, Haberfield is refused. (3) The exhibits, except for Exhibits 1, A and C are returned. Catchwords: DEVELOPMENT APPLICATION: private hospital; risk associated with flooding; loading dock; transition between zones; and bulk and scale. Legislation Cited: Ashfield Local Environment Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Croghan v Blacktown City Council [2019] NSWLEC 2 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Texts Cited: Inner West Comprehensive Development Control Plan 2016 NSW Flood Development Manual 2005 Category: Principal judgment Parties: Group HIS Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Solicitor: G McKee, McKees Legal Solutions (Applicant) M Bonanno, Inner West Council (Respondent) File Number(s): 2018/99710 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 2017/151.1 by Inner West Council (hereafter the Council) which seeks approval to demolish existing structures and construct a three storey private hospital including medical suites and kiosk, in addition to two basement levels for parking on Lot 4 DP 601158, also known as 113 Dobroyd Parade, Haberfield (hereafter the site). Background 1. The DA was lodged with Council on 6 September 2017, and after public notification, two submissions in objection, together with a petition of 43 signatories, were received. 2. The DA was referred to NSW Roads and Maritime Services (RMS), Ausgrid and WaterNSW for concurrence with respect to traffic, energy and dewatering, respectively. No objection was made from RMS, with Ausgrid and WaterNSW providing approval with conditions and General Terms of Approval (GTA), respectively. 3. Council refused the DA on 22 February 2018. The applicant subsequently appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act 1979), which was filed with the Land and Environment Court (the Court) on 3 April 2018. 4. The Court ordered conciliation between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act 1979), which commenced onsite on 16 October 2018. Three resident objectors were heard at the site view. The key issues raised related to: privacy; street parking; and safety associated with existing flooding. 5. The conciliation conference was subsequently terminated as the parties could not reach an agreement, pursuant to s 34(4)(a) of the Court Act 1979. I was the Commissioner for the conciliation conference and by agreement of the parties, pursuant to s 34(4)(b), I now preside over the hearing of this appeal. The parties agreed that on this basis, and with consideration of the objections expressed at the conciliation, the hearing should commence in Court. The residents, including previous objectors, were invited to attend and voice their concerns at the hearing, however none responded to this request. The parties agreed to rely on the objectors concerns raised at the s 34 conciliation conference. 6. On 22 November 2018, the Court granted leave to amend plans and as a consequence, leave was granted for the Statement of Facts and Contentions (SoFC) to be amended, which was filed with the Court on 5 December 2018. 7. Based on the amended SoFC, the contentions that remain under the appeal relate to: * risk to life (and property) due to flooding; * excessive bulk and scale, and potential impact to Haberfield Conservation Area; * requirement for an un/loading dock within the site and parking for ambulances; and * sufficiency of information relating to waste management. 1. The Court granted leave, with the agreement of the respondent, at the commencement of the hearing to rely on further amended plans, provided in Exhibit A. 2. During the hearing, the parties agreed that the amended plans relied upon in Exhibit A resolved in part the issues relating to the loading dock and waste management, accepting that the proposed size of the dock area (located in the basement) is sufficient to allow a small rigid vehicle and access by small vehicles to the adjacent staff parking. The proposed parking arrangement in the basement is not incompatible for an ambulance to attend to patients as required. The parties agreed that by way of condition, the staff spaces should be clearly identified as for 'small cars', 'reverse in' and for staff only. 3. Further to this, the parties agreed that the waste management issue, based on the provision of information relating to volumes and type of waste could be resolved by condition, accepting that the functioning of the waste management system is designed for the proposed use, as defined by the applicant. A change in use of the hospital is agreed could result in a change in the waste profile. However, the parties accept that there is sufficient capacity in the basement to provide any additional waste. The Site 1. The site is an 'L' shape and has an area of 1,324m2, fronting Dobroyd Parade with a length of 35.5m, and extending in an easterly direction for a depth of 45.5m to a rear boundary of 25.7m length. 2. The site is located on the eastern side of Dobroyd Parade, which has a fall in a north-westerly direction towards Iron Cove Creek and northerly towards parkland known as Wadim (Bill) Jegaro Reserve that is dissected by the creek. The Creek has been channelized, and runs along the western side of Dobroyd Parade, which is separated from the street by an area used as a depot for the storage of construction materials. 3. The crossfall of the site is between 1.5-2.0m, towards its north-western corner. 4. The southern end of Dobroyd Parade connects directly with Parramatta Road, which in the proximity of the site is associated with commercial and industrial developments. The site is adjoined on its southern boundary by a car wash, and to the east by a car repair station. 5. Along the site's northern boundary are single level dwellings associated with Cove Street. The residential properties immediately to the north of the site form part of the Haberfield Conservation Area. 6. The site is currently sparsely vegetated due to an extensive elevated concrete pad used for driveway/parking and a two storey brick building that was most recently used as a child care centre. Relevant Planning Controls 1. The requirements of s 4.15(1) of the EP&A Act 1979 are relevant in consideration of this DA: 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration—general 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 Planning 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 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) 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. The site is located within an area zoned as B6 Enterprise Corridor, identified in the Ashfield Local Environmental Plan 2013 (ALEP 2013). Of relevance in consideration of the DA are the following clauses: cl 2.3 zone objectives; cl 4.3 height; cl 6.2 flood planning; and cl 6.5 Haberfield Conservation Area. The objectives of the B6 zone are as follows: 1 Objectives of zone • To promote businesses along main roads and to encourage a mix of compatible uses. • To provide a range of employment uses (including business, office, retail and light industrial uses). • To maintain the economic strength of centres by limiting retailing activity. 1. The proposed use as a private hospital including medical suites and kiosk is permissible with consent in this zone, pursuant to cl 2.3(3) of the ALEP 2013. The ALEP 2013 defines a hospital, health services facility and kiosk as: hospital means a building or place used for the purpose of providing professional health care services (such as preventative or convalescent care, diagnosis, medical or surgical treatment, psychiatric care or care for people with disabilities, or counselling services provided by health care professionals) to people admitted as in-patients (whether or not out-patients are also cared for or treated there), and includes ancillary facilities for (or that consist of) any of the following: (a) day surgery, day procedures or health consulting rooms, (b) accommodation for nurses or other health care workers, (c) accommodation for persons receiving health care or for their visitors, (d) shops, kiosks, restaurants or cafes or take away food and drink premises, (e) patient transport facilities, including helipads, ambulance facilities and car parking, (f) educational purposes or any other health-related use, (g) research purposes (whether or not carried out by hospital staff or health care workers or for commercial purposes), (h) chapels, (i) hospices, (j) mortuaries. Note. Hospitals are a type of health services facility health services facility means a building or place used to provide medical or other services relating to the maintenance or improvement of the health, or the restoration to health, of persons or the prevention of disease in or treatment of injury to persons, and includes any of the following: (a) a medical centre, (b) community health service facilities, (c) health consulting rooms, (d) patient transport facilities, including helipads and ambulance facilities, (e) hospital. kiosk means premises that are used for the purposes of selling food, light refreshments and other small convenience items such as newspapers, films and the like. 1. There relevant sections of the Inner West Comprehensive Development Control Plan 2016 (IWCDCP 2016) for consideration of this DA include the following chapters: A.3 flooding; A.8 parking; A.15 stormwater; C.3 waste; and D.6 enterprise zone. 2. The assessment of flood risk and use of 'private plans' to mitigate risk is described in the NSW Flood Development Manual 2005 (FMP 2005), with focus on parts K3.1, K4.1, L6.7 and L6.9. Evidence 1. The Applicant has relied on Mr Stuart Harding, Mr Drew Bewsher and Mr Oleg Sanniko for expert evidence on planning, stormwater engineering and traffic, respectively. 2. The Respondent has relied on Mr Atalay Bas and Mr Joe Bertacco for expert evidence on planning and stormwater/traffic engineering, respectively. Does the proposed development result in an unacceptable risk to life due to flooding hazard? 1. The flooding experts agree that based on a Council derived model, the site is located below the flood planning level (FPL), and within a 'flash flood catchment'. The site could be flooded up to 2 m above the level of a probable maximum flood (PMF), when measured at the kerb on Dobroyd Parade adjacent to the site. 2. The FPL (determined as 0.5 m above the 1:100 average recurrence interval) at this site is determined as 3.6 m Above Height Datum (AHD), and the PMF level is 5.5 m AHD. The experts also agree that the site is not identified as a flood control lot, as described in the IWCDCP 2016, Schedule 2. 3. The source of the flooding on the site is agreed as resulting from flood waters accumulating within Dobroyd Parade due to overland flow (from Parramatta Road) and the overtopping of the Creek. The floodwaters collect in the lowest point of the Dobroyd Parade within the parkland, to the north of the site. 4. The flooding experts agree that: 1. the ground floor level, as designed, is at 4.25 m AHD and the driveway crest is 4.2 m AHD, approximately 0.65 m and 0.6 m, respectively above the FPL. 2. the designed ground floor and the basement crest levels are below the PMF level, and in this event, the ground floor level would be flooded by potentially over 1.25 m of water. 3. the first floor level (at 7.55 m AHD) is located above the FPL and PMF level, and floor levels above the first floor are not at risk of being flooded. 4. the designed floor levels have adequately considered the potential impact of climate change to flood levels (estimated as up to 0.13m increase in height) and also considered a possible change in the frequency for the 1:100 average recurrence interval (ARI). 5. a PMF event is a rare occurrence. 6. in a flash flood, the peak PMF level could be reached within 30 minutes of the onset of rainfall, and in a 1:100 ARI flood, the peak level could be reached within 1 hour of rainfall onset. 7. the proposed development will not result in any adverse flood impacts to adjoining properties. 1. With regards to the proposed response in a flood, the experts agree that: 1. the Draft Flood Emergency Management Plan (FEMP), Exhibit C, is well prepared and based on the proposed use as a maximum 23 hour stay hospital. 2. all 'occupants' of the building are 'exposed to flood risks'. 3. the proper and timely activation of the flood gate leading to the basement and the water tight seals on basement access doors will protect the basement from flooding in an event exceeding the predicted FPL. 4. evacuation to levels above the ground floor will be required for all persons on the site, including those in the basement, at the 'activation' stage of emergency flood response. 1. The experts accept that an ambulance would not be able to access the basement when the flood gates are activated during a flood event. Mr Bewsher stated that, if required, the ambulance could pick up patients from Dobroyd Parade at the front of the site. He did not consider the presence of floodwaters would hinder this process. 2. The experts do not agree on the potential consequences/risk to persons associated with the hospital and its ancillary activities, particularly those most vulnerable due to illness/surgery. A key disagreement relates to whether the proposed reliance on a FEMP, equivalent to a 'private plan' as defined in the FDM 2005, sufficiently mitigates the risk. 3. In addition, the experts disagree on the level of risk to persons trying to access the site to retrieve patients and/or those that choose to leave the site by foot during a flood event; and whether Mr Bewsher's assertion and reliance on a logical and sensible reasoning to not enter the street during a flood event is reasonable. Mr Bewsher considers in the event that if someone is outside the site during a flood, the level of water and low velocity flow would not impede persons walking through floodwaters or overland flow to reach safe refuge in Cove Street. Mr Bertacco however, is not satisfied that the proposed egress route to Cove Street is safe during a high rainfall/flood event. 4. In Mr Bewshers' evidence, the required response as detailed in the FEMP for onsite refuge, is 'activated' when water levels located at the front of the site on Dobroyd Parade reaches 3.8 m AHD (equivalent to 0.2 m above a 1:100 ARI flood), which is when the water level sensor sounds. When this occurs, Dobroyd Parade is inundated, and the 'Designated Site Flood Coordinator' will ensure all persons on the ground floor level and in the basement are evacuated to the first floor level and above until the flood waters abate. He estimates that the flood would last less than one hour. He expressed a number of times, the rarity of such an event and that in the lifetime of this development, the potential for activation of the FEMP and evacuation is unlikely. 5. Further to this, Mr Bewsher explained that as detailed in the FEMP, when a 'severe rainfall/flooding event' is forecast by the Bureau of Meteorology (BoM) for a subsequent day, the site will be closed and surgeries will be cancelled. Pre-existing patients on the ward will be evacuated (accepting ~10% of patients will be required to stay overnight). He considers the predictions of the BoM are 70% accurate, and the FEMP therefore will provide sufficient response as required. 6. Mr Bertacco, whilst accepting that an event that would result in flooding of the site and evacuation may be a rare occurrence, he expressed concerns regarding the suitability of the proposed use as a hospital at this site, and the potential for complacency in implementing and relying on a FEMP to protect human safety, particularly those most vulnerable. 7. With regards to complacency, his concerns relate to: the potential for human error; potential for lack of awareness of the significance of an event; lack of maintenance of flood sensors/gates/seals; and whether training by the appropriate staff will be maintained adequately. He considers that in 50 years' time, the FEMP will not be in place or able to operate. 8. Mr Bertacco expressed concerns should the proposed use of the hospital be changed to a longer stay or different type of procedure than currently proposed by the applicant. He considers that should this happen, the patients could potentially be more vulnerable and the FEMP would be less effective. He referred to the FDM 2005, which explains that the type of development is a factor of consideration when assessing the appropriateness to managing the hazard. 9. Mr Bertacco contends that the objectives of cl 6.2 of the ALEP 2013 are not achieved by the proposed development on this site based on the proposed use as a hospital. Findings 1. I accept the flood experts evidence that the site is located below the FPL (and PMF). Therefore, cl 6.2 of the ALEP 2013 is relevant for consideration. 6.2 Flood planning (1) The objectives of this clause are as follows: (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. (2) This clause applies to land at or below the flood planning level. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: (a) is compatible with the flood hazard of the land, and (b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of the river banks of waterways, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. (4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005, unless it is otherwise defined in this clause. (5) In this clause, flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard. 1. The flood mitigation measures relied upon by the development, such as evacuation, flood gates, flood door seals and the location of the site being upgradient of the primary source of flooding, will not change the flood behaviour pattern beyond the site. 2. Based on the expert evidence, I consider that the proposed development will not detrimentally impact flooding on adjoining lands, including residences in Cove Street, the Creek and the parkland, therefore the objective in cl 6.2(1)(c) of the ALEP 2013 to 'avoid significant adverse impacts on flood behaviour and the environment' and requirements of cl 6.2(b) are achieved. 3. I find the requirements of cl 6.2(3)(d) and (e) not relevant for consideration of the proposed development. 4. The effects of flooding to the internal functioning of the site and to persons related to the development are an important consideration. I consider that the remaining objectives, namely cl 6.2(1)(a) and (b) are not achieved. In addition, I am not satisfied that the requirements of cl 6.2(3)(a) and (c) are achieved by the proposed development for the reasons that follow. 5. It is accepted that the entry points to the proposed development, being the ground floor and driveway crest levels, are designed to be located above the FPL. I also accept that these levels are located below the PMF, and that the floors above the ground floor will remain above the identified flood levels at all times. 6. It is agreed that inundation at this site is likely to be a 'rare' event, however I do not fully agree with Mr Bewsher that due to the rarity of the event/s, the measures proposed will adequately mitigate any detrimental impact to persons associated with the site. 7. I do not accept Mr Bewshers' evidence that the risk is appropriately mitigated, primarily due to the potential consequences to human life. I accept that the flood levels have considered the potential climate change impact, however I consider that what is not predictable as a consequence of climate change is the potential for change in the frequency of flood events. Therefore, a reliance on the 'rarity' of these events is not reasonable. 8. The key risks to be considered for this development relates to flooding of the internal areas from an event where the flood level exceeds 4.2 m AHD, the potential for persons to enter/exit the site during a flood event and also the implications to the functioning of the site, both long and short term after a flood event. Consideration must be given to the effectiveness and reliability of the proposed management procedures, as documented in the FEMP, and whether they are sufficient to protect patients, staff and relatives/friends. 9. Mr Bewsher accepts, upon questioning, that the FEMP is not based on a detailed risk assessment/matrix. I consider this a fundamental failing of the approach adopted by this expert to understanding and managing the associated flood risk at the site for this type of development, a hospital. Without undertaking this basic and fundamental assessment of all the elements that define the risk associated with a flood event to a hospital, the FEMP is potentially flawed. It assumes a 'generic' type of development, which does not adequately consider the vulnerability of the patients. I consider the approach adopted by the expert does not place adequate regard to the elements of risk, particularly the consequences to the most vulnerable, which in my mind is critical for a hospital in a flood zone. The FMP 2005, Section L6 describes the 'type of development' as a hazard category, and in Section N7.1 explains that 'Implementation of a plan depends explicitly on a thorough understanding of the risk and of the roles and responsibilities'. I consider that a thorough risk assessment would have pulled apart the elements relevant for the proposed type of development. This has not been undertaken sufficiently in this case. 10. The approach I adopt here, to require detail in consideration to addressing risk is reinforced by Molesworth AJ in Croghan v Blacktown City Council [2019] NSWLEC 2 at [49] and [65] "[49] …rather it is a question of whether the hypothetical purchaser is accessing relevant information so as to be informed of what may or may not be required to be done within the boundaries of the Acquired Land, in order to address the identified flooding issues. ... [65] ... The Court has noted that such a cautious approach, a heightened awareness of risk, to floodway management appears to be emerging amongst hydrologists as a responsible professional stance to adopt." 1. The consequences of flooding of and around a hospital where vulnerable people have an expectation to be safe, irrespective of the time over which they are 'evacuated' or the rarity of the event, deems the proposed development at this site unacceptable. The reliance on the FEMP for people to be able to be evacuated in a timely and efficient manner, and in the case of a PMF event within 30 minutes and a FPL in one hour, is unrealistic. The reliance on key hospital staff to ensure all people located on the ground floor and within the basement are evacuated efficiently in the event of a flash flood is also unrealistic. 2. I have no doubt that the staff (and patients) will attempt to do the right thing in a flood event. However, an appropriate response relies on people being: aware of the potential need for a response; able to rely on staff to act appropriately and efficiently; and having the capacity to respond, as required. The experts agree that the patients would be vulnerable and will not be made aware of the sites' potential for flooding; and that the FEMP relies on the relevant staff being appropriately trained and available. The applicant is relying on the FEMP to provide 'flood readiness'. I accept Mr Bertacco's concerns that with the passage of time and potential changes in type of use of the hospital or ownership, the reliance of the FEMP will negate its effectiveness. 3. Relevantly in the FMP 2005, Section N7.1 states: "Floods are highly variable in frequency and severity and this influences two critical planning assumptions, available flood warning time and likely consequences. If, in an actual flood, there is a significant variation between assumptions and reality, even a well written plan may fail unless intelligent on-the-day adaptation is implemented." 1. In evidence, Mr Bewsher states that there are many other potential hazards for a hospital, such as fire that also need to be planned for. The hospital may therefore need to invest heavily in ensuring staff are well trained in a diverse range of hazard management. I have little confidence that flood management will be foremost in their minds, particularly with the passage of time when there is no occurrence of a flood and if management changes. Complacency will be a significant factor that affects the effectiveness of the FEMP to manage the hazard. 2. Therefore, I find that cl 6.2(1)(a) and (3)(c) of the ALEP 2012 have not been satisfied. 3. It is accepted by the experts that the ground floor level may flood up to 1.25 m, and to prepare for a possible flood event in and around the site, there is a reliance on the busy functioning hospital to stop surgeries pre-emptively, keep training up to date and have the appropriately trained staff on site and available to effect an evacuation. This is an unreasonable expectation for a hospital on this site. This leads me to determine that the proposed development on this site is not compatible with the flood hazard, and is therefore not consistent with cl 6.2(1)(b) and (3)(a) of the ALEP 2012. 4. The FMP 2005, Section L6.2 explains that the effective warning time is always less than the total warning time. It further states a hospital is a type of development that would require 'additional effective warning time'. I consider that a flash flood would not necessarily give sufficient 'effective warning time'. 5. I find that the risk to human life is unacceptable and that the siting of a hospital within the flood hazard area, in a building that is subject to flooding, and having reliance on a 'refuge in place' approach with vulnerable people makes the site incompatible with the flood hazard. I don't accept that an ambulance will/can enter the street or access the site in the case of an emergency during a flood event. 6. Floods do not just impact at the time of water inundation, there is a period thereafter a major flood event where the debris associated with the flood, including mud left behind, is required to be removed. This will necessitate not only persons remaining on the first level and above during the actual flood event, which is estimated by experts to be less than one hour, but may also result in an extended period of time whereby the hospital cannot operate and access is constrained whilst flood debris to be removed. This is a particularly significant issue for a hospital/medical suites where a sterile environment is critical and access to vulnerable patients is time sensitive. The 'refuge in place' approach with vulnerable and sick persons whom are unable to be evacuated by ambulance during a flood event, and for an undetermined period thereafter, makes the proposed development incompatible with the site's assessed flood hazard. 7. The proposed development does not satisfy cl 6.2 of the ALEP 2012, and therefore is not consistent with s 4.15(1)(a)(i) of the EP&A Act 1979. 8. I also find that the proposed development, as a hospital is not compatible with the flood hazard at this site, and therefore is not a suitable site for the propsoed development, pursuant to s 4.15(1)(c) of the EP&A Act 1979. Does the proposed development result in unreasonable impacts to the heritage conservation area and streetscape of Dobroyd Parade? 1. The parties agree that the proposed development complies with the height standard (of 10 m), pursuant to cl 4.3(2) of the ALEP 2016. 2. The parties also agree that the proposed development complies with the building envelope control for a 22.5 degree rear setback envelope, as set out in Figure 13, Chapter D6 of the IWCDCP 2016, except for a 'sliver' of the three storey element, along the north-western alignment. 3. The parties disagree as to whether the proposed built form of the development effectively transitions with the adjoining heritage conservation area. They also disagree whether the proposed development complies with the requirements as shown in Figure 13, Chapter D6 of the IWCDCP 2016, and thereby fails the objectives as set out in cl 4.3 of the ALEP 2013 below: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to achieve high quality built form for all buildings, (b) to maintain satisfactory sky exposure and daylight to existing buildings, to the sides and rear of taller buildings and to public areas, including parks, streets and lanes, (c) to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings, (d) to maintain satisfactory solar access to existing buildings and public areas. 1. Mr Bas considers that the proposed development, as shown in the amended plans, does not respond well to the adjoining residential dwellings that forms part of the Haberfield Conservation Area. He views the proposed three storey building on the site as inconsistent with the single storey dwellings in the adjoining residential area (along the northern boundary). He refers to cl 6.5(1) of the ALEP 2016, which requires dwellings within the Haberfield Conservation Area to maintain a single storey presentation and therefore their current presentation must be considered. 2. Mr Bas is concerned that the proposed building design presents as a bulky form with insufficient relief to the adjoining residences, which is inconsistent with the scale transition as envisaged in the IWCDCP 2016, specifically Chapter D.6, Figure 13. He identifies that the 22.5 degree rear setback envelope control is to ensure an appropriate transition to the single level residential dwellings. Mr Bas refers to Figure 13 to indicate that buildings should be two stories in this (B6) zone, rather than the three stories as proposed by the applicant. The inconsistency with Figure 13 results in an unacceptable massing of the building along the (northern) boundary to residences on Cove Street and to the streetscape (along Dobroyd Parade). 3. Based on this understanding, Mr Bas contends that the proposed development is inconsistent with the following purposes of the B6 zone as described in Chapter D.6 of the IWCDCP 2016 and as a result is inconsistent with the objectives of cl 4.3 of the ALEP 2013: "• To create a better streetscape that improves pedestrian amenity and attracts new enterprise. ... • To improve the visual character and urban design of the Parramatta Road Corridor. • To protect residential amenity of adjoining neighbourhoods. ..." 1. Mr Harding contends that the proposed development satisfies the relevant provisions of the ALEP 2013, including cl 4.3. He considers that the proposed development does not breach any numeric controls as set out in the IWCDCP 2016, and that Figure 13 is an indicative design that the proposed development is 'generally consistent' with. He does not consider that Figure 13 demonstrates a requirement for developments in the B6 zone to be constrained to two stories, as it does not consider the potential for slopes, such as found on this site. 2. Further to this, Mr Harding notes that the proposed development does not cause any adverse amenity impacts to the adjoining dwellings and the transition to the adjoining heritage conservation area is achieved through the landscape strip and the driveway on the northern boundary of the site, and the 'stepped design' of the building. He is of the opinion that the proposed development is in accordance with the principles and associated provisions of the IWCDCP 2016. 3. With regards to visual character, the experts did not agree as to the effect of the proposed building and façade on the streetscape and to adjoining residences. Mr Bas considers the 'blank wall' facing to Parramatta Road and 'compressed' appearance of the ground floor level due to the bulk of materials on first and second levels, does not contribute positively to the streetscape (Dobroyd Parade) and public domain. He also considers the reliance on landscaping to relieve the bulky nature of the building along the northern boundary is not appropriate. 4. Mr Harding views the architectural quality of the design together with the proposed landscaping results in a high visual character. The activation of the street front by the presence of the kiosk with outdoor seating area and the extent of the fixed façade is consistent for the (B6) enterprise corridor that is subject to high traffic volumes and otherwise low levels of amenity. Findings 1. The parties agree that the issues for consideration relate to transition and appearance primarily to the adjoining residential dwellings which are part of a heritage conservation area, and consistency with the objectives as set out in cl 4.3(1) of the ALEP 2013. 2. The parties accept that there are no relevant numeric controls established in Chapter D.6 of the IWCDCP 2016, except those provided in Figure 13. In assessment of the appropriate transitioning to the Haberfield Heritage Conservation Area, I refer to the control, DS 3.2, as it relates to 'building, siting and design' in the IWCDCP 2016 and for which Figure (13) relates. DS 3.2 states: "New development is to be generally consistent with the setback principles illustrated in the locations shown at Figures 8 –11(maps) , and maximum ceiling height and building setback planes at Figures 12,13, 14, 15 (sections). Development adjoining residential areas is to be consistent with residential amenity controls in Section 3.6." 1. The parties agree that there are no amenity impacts to the adjoining residential dwellings as a result of the proposed development, with respect to adverse overshadowing/solar access, overlooking/privacy or view loss. 2. With regards to the weight that should be placed on numeric adherence for the 'rear setback envelope' and 'maximum ceiling height', as provided in Figure 13 of Chapter D.6 of the IWCDCP 2016, I rely on the terms of the relevant control DS 3.2 which require 'New development is to be generally consistent with the setback principles'. I therefore find that numeric adherence to the values in Figure 13 is not the relevant test, however the test is 'general consistency with', and whether the proposed development achieves an 'adequate/low scale relationship'. I find, for the following reasons, the proposed development has achieved the relevant consistency with control DS 3.2. 3. The stepped nature of the building, with the second floor level is well set back (> 13m) from the northern boundary, the 3m setback of the building from the boundary containing a deep soil landscape strip, and the location of the driveway, which all support an appropriate transition of a three storey building (proposed development) to an adjoining single level dwelling (heritage conservation area). I observed onsite that there are no residential dwellings that immediately adjoin the boundary of the site, and that due to the orientation of the dwellings, there is a significant separation to the nearest residences from the backyard. The element of the breach in the 22.5 degree building envelop on the proposed development is located towards Dobroyd Parade, an area that is unlikely to be directly visible for the adjoining residences. 4. The consideration of the physical impact, which relates to amenity, and visual impact, which relates to the bulk and scale, to determine compatibility of a building with its environ is expressed in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 by Roseth SC. He explains below, the importance of relating to the surrounding environ at [26] and at [27] height transition, which I find is achieved by the proposed development through a stepping of the levels towards the northern boundary with landscaped setback: "[26] ... The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. ... [27] Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape." 1. I therefore find that the minor breach by the proposed development to the rear setback envelope is not inconsistent with control DS 3.2 and Figure 13, as described in Chapter D.6 of the IWCDCP 2016. I agree with Mr Harding that the proposed building design provides adequate transition to the adjoining residences, and the bulk and scale is not inconsistent with the character of the zone nor presents as an unacceptable appearance to the heritage conservation area. 2. I also find that the proposed flat roof form of the building, which is increasingly set back from the site boundaries in the north (residences) and west (street) at each level, has the effect of reducing the buildings' visual impact to residences and the street. Therefore, I consider numeric compliance with maximum ceiling height provided in Figure 13 Chapter D.6 of the IWCDCP 2016 is not required to achieve 'general consistency' with control DS 3.2. 3. For the reasons provided above, I therefore find that the proposed development is not inconsistent with the objectives of cl 4.3(1) of the ALEP 2013, and of particular relevance achieves (c) 'to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings'. Conclusion 1. I have previously determined that the DA does not satisfy cl 6.2 of the ALEP 2013, and the site is not suitable for the proposed use as a hospital due to the flood hazard and risk to life, pursuant to s 4.15(1)(c) of the EP&A Act 1979. 2. I am not satisfied that the proposed development is lawful and complies with the relevant provisions of the EP&A Act 1979, namely s 4.15(1)(a)(i) and (c). Orders 1. Consequently, the orders of the Court are as follows: 1. The appeal is dismissed. 2. Development Application 2017/151.1 which seeks to demolish existing structures and construct a three storey private hospital including medical suites and kiosk, in addition to two basement levels for parking on Lot 4 DP 601158, also known as 113 Dobroyd Parade, Haberfield is refused. 3. The exhibits, except for Exhibits 1, A and C are returned. ……………………. Sarah Bish Commissioner of the Court ********** 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: 07 March 2019