Land and Environment Court New South Wales

• Medium Neutral Citation: Staldone Corporation Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1055
• Hearing dates: 27,28,31 October 2011, 1 November 2011, Directions for amendments to plans 11 January 2012, written submissions on amendments to plans 23 February 2012
• Decision date: 13 March 2012
• Jurisdiction: Class 1
• Before: Brown ASC

Decision

In Appeal No 10446 of 2011, the orders of the Court are:

1. The appeal is upheld.

2. DA 0986/08 for the consolidation of the five lots consisting of 6, 6A, 8, 10 and 10A Beaconsfield Parade and the resubdivision of the lots into 2 lots (Lots A and B) is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 3 and A.

In Appeal No 10444 of 2011, the orders of the Court are:

1. The appeal is upheld.

2. DA 0987/08 for the demolition of three existing dwelling houses and the construction of 2 x part 5/6 storey residential flat buildings containing 68 units on proposed Lot A in the consolidation and resubdivision of 6, 6A, 8, 10 and 10A Beaconsfield Parade, Lindfield is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 3 and B.

In Appeal No 10447 of 2011, the orders of the Court are:

1. The appeal is upheld.

2. DA 0988/08 for the demolition of an existing attached dual occupancy and single dwelling and the construction of a part 5/6 storey residential flat buildings on proposed Lot B in the consolidation and resubdivision of 6, 6A, 8, 10 and 10A Beaconsfield Parade, Lindfield is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 3 and C.

• Catchwords: DEVELOPMENT APPLICATION; subdivision and construction of three residential flat buildings - whether subdivision boundary appropriate - whether subdivision sterilises or lessens the development potential of neighbouring properties - breach of the height/storey development standard and the whether objection under SEPP 1 is well founded - whether building design acceptable - whether excessive car parking provided - location of manageable housing - overlooking/loss of privacy impacts on adjoining properties
• Legislation Cited: draft Ku-ring-gai Local Environmental Plan (Town Centres) 2006; draft Ku-ring-gai Local Environmental Plan (Town Centres) 2008; Environmental Planning and Assessment Act 1979; Ku-ring-gai Planning Scheme Ordinance; Ku-ring-gai Town Centres Local Environmental Plan; Ku-ring-gai Multi-Unit Housing Development Control Land No. 55; State Environmental Planning Policy No. 1; State Environmental Planning Policy No. 65
• Category: Principal judgment
• Parties: Staldone Corporation Pty Ltd (Applicant); Ku-ring-gai Council (Respondent)
• Representation: Counsel; Mr M Staunton, barrister (Applicant); Mr J Robson SC (Respondent); Solicitors; Lindsay Taylor Lawyers (Applicant); Norton Rose Australia (Respondent)
• File Number(s): 10444, 10446 and 10447 of 2011

Judgment

1 ACTING SENIOR COMMISSIONER : These are three separate but related appeals that were refused by Ku-ring-gai Council (the council) and relate to the subdivision and construction of three residential flat buildings at 6, 6A, 8, 10 and 10A Beaconsfield Parade, Lindfield (the site). The development applications were lodged with the council on 30 September 2008. The three appeals are:

• Appeal No 10446 of 2011 (DA 0986/08) seeks the consolidation of the five lots consisting of 6, 6A, 8, 10 and 10A Beaconsfield Parade, with a total area of 7867 sq m, and the re-subdivision into two lots identified as proposed Lot A and proposed Lot B. Proposed Lot A has a frontage to Drovers Way and an area of 4613 sq m and proposed Lot B has a frontage to Beaconsfield Parade and an area of 3254 sq m (the subdivision appeal).

• Appeal No 10444 of 2011 (DA 0987/08) seeks the seeks the demolition of three existing dwelling houses and the construction of 2 x part 5/6 storey residential flat buildings containing 68 units on proposed Lot A. Building 1 is located towards the Drovers Way frontage and contains 41 units with basement car parking and access from Drovers Way. Building 2 is located behind Building 1 and contains 27 units with basement car parking that is connected to the basement car parking for Building 1 (the Lot A appeal).

• Appeal No 10447 of 2011 (DA 0988/08) seeks the demolition of an existing attached dual occupancy and single dwelling and the construction of a part 5/6 storey residential flat buildings containing 40 units on proposed Lot B. The building is located with a frontage to Beaconsfield Parade where access is gained to the basement car park that is shared with Lot A (the Lot B appeal).

2 The contentions in the subdivision appeal relate to:

1. whether the proposed subdivision boundary is unnecessarily irregular and inappropriate, and

2. whether the proposed subdivision sterilises or lessens the development potential of neighbouring properties.

3 The contentions in the Lot A appeal relate to:

1. the internal amenity issues with some units, particularly solar access,

2. the unacceptable relationship with adjoining residential properties, particularly 16 Beaconsfield Parade,

3. building design issues, particularly pedestrian access and entry, excessive building depth and access to communal open space,

4. the breach of the floor space ratio (FSR) requirement,

5. the breach of the minimum area requirements for some balconies,

6. the inadequate separation between Buildings 1 and 2,

7. the poor internal amenity of common circulation areas with regard to ventilation and natural light ,

8. the inappropriate location of air-conditioning units on the roof of Buildings 1 and 2,

9. the excess provision of car parking spaces in the basement,

10. the inadequate provision of manageable housing, and

11. the excess provision of car parking spaces in the basement.

4 The contentions in the Lot B appeal relate to:

1. the unsuitable entry to the building,

2. the intrusive design of the front balconies in the streetscape,

3. the breach of the FSR requirement,

4. the breach of minimum area requirements for some balconies,

5. the poor internal amenity of common circulation areas with regard to ventilation and natural light,

6. the inappropriate location of air-conditioning units on the roof of the building, and

7. the excess provision of car parking spaces in the basement.

5 The council's contentions can be summarised into the following main areas:

1. is a SEPP 1 objection to the height and storey development standard necessary, and if so, is it well founded ?,

2. are the subdivision boundaries appropriate?,

3. is the building design appropriate, particularly in relation to pedestrian access and entry, internal amenity, FSR, communal open space, internal circulation areas, balcony size and design, and air-conditioning location?,

4. is excessive car parking provided?,

5. is the location of the manageable housing appropriate?, and

6. is the potential for overlooking/loss of privacy acceptable?

6 A number of residents provided evidence on the morning of the site inspection and the Court was provided with a number of bundles of documents containing the submissions provided to the council during the advertising of the proposed development. The concerns expressed by the residents, and not addressed in the council's contentions, relate to:

1. the impact on the heritage significance of the area, and

2. the unsatisfactory disposal of stormwater from the proposed development,

3. loss of significant native vegetation and fauna,

4. loss of views, and

5. additional traffic and parking in the area.

The site and locality

7 The site comprises 5 lots and is irregularly shaped with a 49.975 m frontage to Beaconsfield Parade, a 58.635 m frontage to Drovers Way and an area of 7867 sq m. It is relatively steep, with a cross fall greater than 15% in a north-south direction. The existing vegetation on the site includes native and exotic trees and shrubs. Some vegetation is representative of Sydney Turpentine Ironbark Forest and Blue Gum High Forest endangered ecological communities.

8 The site falls way towards the southern corner where a drainage easement from 8 Beaconsfield Parade (across 10a Beaconsfield Parade) convey stormwater to a watercourse within 4 Drovers Way. This watercourse flows in a western direction through 16, 18, 20a and 22 Beaconsfield Parade and is then piped through the further downstream properties.

9 The locality is predominantly residential in nature with the Lindfield town centre located to the north. The southern boundaries of the site form an the interface with existing low scale residential development, comprising largely existing dwelling houses on large lots, some with tennis courts, in a landscaped setting.

Relevant planning controls

10 The site is zoned Residential 2(d3) under the Ku-ring-gai Planning Scheme Ordinance (the Ordinance). The Residential 2(d3) became effective on the 28 May 2004 with the amendment of the Ordinance by Ku-ring-gai Local Environmental Plan 194 (LEP 194).

11 By way of background, in October 2006 draft Ku-ring-gai Local Environmental Plan (Town Centres) 2006 (draft LEP 2006) was placed on public exhibition. Relevantly, draft LEP 2006 proposed to zone the site from Residential 2(d3) to Zone R4 High Density Residential . Accompanying draft LEP 2006 was Ku-ring-gai Development Control Plan (Town Centres) 2006 (draft DCP 2006) that was exhibited in November 2006. The site, and surrounding area, was included within Precinct F. The final version of draft DCP 2006, including controls for Precinct F, was adopted by the Council on 19 November 2006 and was to come into effect with the gazettal of draft LEP 2006. As draft LEP 2006 was never made, draft DCP 2006 never came into force.

12 On 5 November 2008, draft Ku-ring-gai Local Environmental Plan (Town Centres) 2008 (draft LEP 2008) was placed on public exhibition. On 27 May 2009, draft LEP 2008 was referred to the Department of Planning to be made however the draft plan was not made and consequently did not come into force.

13 On 25 May 2010, Ku-ring-gai Town Centres Local Environmental Plan (the Town Centres LEP) was gazetted and zoned the site R4 High Density Residential. The Town Centres LEP contained savings provisions that captured the development applications however the Town Centres LEP was declared void and of no effect on 28 July 2011 ( Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128) so the relevant planning instrument for the assessment of the applications is the Ordinance .

14 The relevant provisions of the Ordinance are cl 25B Definitions and cl 25C(2) Aims and objectives. Clause 25D(1) provides that consent must not be granted unless regard has been given to:

(a) the objectives for residential zones set out in this clause, and

(b) if the application is for consent for a residential flat building in Zone No 2 (d3), a statement describing the extent, if any, to which carrying out the proposed development would affect the heritage significance of any heritage item in the vicinity of the subject land.

15 Clause 25D(2) provides objectives for residential zones.

16 Clause 25I provides site requirements and development standards for multi-unit housing. Clause 25I(1) provides heads of consideration and prior to granting development consent the matters set out in the clause must be taken into account. These matters are:

(a) the desirability to provide a high proportion of deep soil landscape to the site area,

(b) the impact of any overshadowing, and any loss of privacy and loss of outlook, likely to be caused by the proposed development,

(c) the desirability to achieve an appropriate separation between buildings and site boundaries and landscaped corridors along rear fence lines,

(d) the environmental features that are characteristic of the zone in which the site is situated by requiring sufficient space on-site for effective landscaping,

(e) the desirability of adequate landscaping so that the built form does not dominate the landscape,

(f) how the principles of water cycle management can be applied to limit the impacts of runoff and stormwater flows off site.

17 Clause 25I(2) provides minimum standards for deep soil landscaping, cl 25I(3) provides minimum street frontages requirements, cl 25I(5) provides requirements for the maximum number of storeys, cl 25I(6) provides requirements for the maximum site coverage, cl 25I(7) provides limits on the floor area of the top storey and cl 25I(9) provides requirements for the maximum number of storeys.

18 Clause 25J addresses car parking and prior to granting development consent the matters identified in the clause must be taken into account, cl 25K addresses sites with steep slopes, cl 25K provides objectives where there is a zone interface and cl 25N provides objectives and requirements for manageable housing.

19 Ku-ring-gai Multi-Unit Housing Development Control Land No. 55 (DCP 55) applies to land zoned Residential 2(d3). Clause 4.2 addresses density, cl 4.3 addresses setbacks, cl 4.5 addresses residential amenity including solar access and visual privacy and cl 6 addresses consolidation of isolated sites.

20 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (RFDC) (cl 30(2)(c)).

Is a SEPP 1 objection necessary?

21 The parties disagree on whether the proposed development satisfies the development standards in cl 25I(7) and cl 25K although I did not understand there to be any dispute that the proposed development was entitled to the concessions in cl 25K. Put simply, the council's position that satisfaction is not achieved is triggered by cl 25I(9) where the calculation of the number of storeys is bases on the use of basement car park level. The council maintains basement car parking level is deemed to be a storey as it is attached to a residential component of the development and has an area of the ceiling more than 1.2 m above the ground level. For the meaning of "ground level", the council maintains that the level is the ground prior to the proposed development being carried out. This level is determined by a survey of the existing level of the ground.

22 The applicant's position is that the basement car park, storage and service component is located predominantly below the natural ground level with only a small area exceeding the 1.2 m ceiling height. Further, the basement car park level is not on the same level as the residential component. In the applicant's opinion, "ground level" means the level of the ground in its natural state undisturbed by the erection of any building or carrying out of any work. The applicant argues that where the ground level has been disturbed by the erection of a building or carrying out of a work, then it is necessary to interpolate natural ground level by finding those parts of the site which remain in their natural state, determining the levels of those parts by survey, and then interpolating the natural ground level of those parts of the site that had been artificially modified through excavation or filling.

23 Mr Gregor Zylber, the applicants town planner, and Mr Harvey Sanders, the councils town planner, and after the provision of additional information, agree that Building 1 and Building 2 on Lot A satisfy the requirements in cl 25I, irrespective of which interpretation is used. The only dispute is in relation to the building on Lot B but Mr Zylber and Mr Sanders agree that if the Court adopts the approach suggested by the applicant then the requirements in cl 25I are satisfied. However, if the council's approach is adopted then there is a small part of the basement area which is used for car parking, storage or plant and is up to 960 mm above the 1.2 m limit imposed by cl 25I(9) and there is a breach of the storey development standard. If council's submissions are adopted, and for the development to proceed and the merits of the proposed development considered, the Court will need to find that the SEPP 1 objection is well founded.

24 Mr Zylber provides a SEPP 1 objection to the development standards in cll 25I(7) and 25K that relate to the limit of floor area on the top storey and concessions for steep sites, respectively. Mr Zylber states that the SEPP 1 objection is not needed but only submitted because of the assertion by the council that there is a breach of the development standard in cl 25I(7), including the benefits gained by the provisions in cl 25K.

25 Clause 25K states:

25K Steep slope sites

Consent may be granted to a building on a site with a site slope greater than 15% that would:

(a) exceed the number of storeys controls in clause 25I (8) by only one storey for up to 25% of the building footprint, or

(b) exceed the height controls in clause 25I (8), but only by up to 3 metres for up to 25% of the building footprint, or

(c) take advantage of the concessions conferred by both paragraphs (a) and (b), but only for up to the same 25% of the building footprint.

26 In considering the SEPP 1 objection, cl 25I(5) provides that the buildings on the site are not to have more than that the number of storeys provided in the Table to the subclause. For a site area greater than 2400 sq m, the Table indicates a maximum of 5 storeys. Clauses 25I(7), (8) and (9) relevantly state:

25I Site requirements and development standards for multi-unit housing

(1)

.

.

.

(7) Limit on floor area of top storey

In Zone No 2 (d3), where the maximum number of storeys permitted is attained, then the floor area of the top storey of a residential flat building of 3 storeys or more is not to exceed 60% of the total floor area of the storey immediately below it.

(8). Maximum number of storeys and ceiling height

Subject to sub clause (5) and clause 25K, buildings on land to which this Part applies are not to have:

(a) more storeys than the maximum number of storeys specified in Column 2 of the Table to this sub clause, or

(b) given the number of storeys in the building, a perimeter ceiling height greater than that specified in Column 3 of that Table.

27 For the purposes of cl 25I(8) and for the Residential 2(d3) zone, the number of storeys in Column 2 of the Table is 4 (but not including top storey area reduced by sub clause 7). The perimeter ceiling height in Column 3 of the Table is 7.2 m, 10.3 m and 13.4 m for 2, 3 and 4 storeys, respectively.

(9) Any storey which is used exclusively for car parking, storage or plant, or a combination of them, in accordance with the requirements of this Ordinance and no part of which (including any wall or ceiling which encloses or defines the storey) is more than 1.2 metres above ground level, is not to be counted as a storey for the purposes of the Table to sub clause (8).

28 The relevant definitions from cl 25B are:

ground level means the natural level of the ground before the erection of any building or carrying out of any work.

perimeter ceiling height means the vertical distance measured between ground level at any point and the topmost point of any ceiling where it meets, or where a horizontal projection of the ceiling would meet, any external or enclosing wall of the building

site slope means the proportion, expressed as a percentage, of the vertical difference in levels between the highest and lowest points of the ground level at the outer edge of the building footprint of proposed development to the horizontal distance between those same two points.

The applicant's submissions

29 Mr Staunton submits that the interpretation of ground level is best addressed in Mark Markhoul v Parramatta City Council (2006) 148 LGERA 398 where Jagot J summarised other similar cases and considered the rules of interpretation. Mr Staunton places some emphasis on the Court of Appeal decision in Rizzi and Another v Rockdale Municipal Council (1994) 85 LGERA 113 (and referred to in Mark Makhoul ). In this case, the phrase "natural ground level" was qualified by the use of the word "existing". The Court held that the use of the word "existing" imposed a temporal requirement, which meant that natural ground level had to be determined at the time of the grant of consent. In this case, there is no temporal qualification. The qualification in this case is that the level must be the natural level of the ground prior to the erection of any building with a carrying out the work. That requires that a point be found where the level of the ground was at its natural level undisturbed by the erection of any building for the carrying out of work. A literal reading of the definition, giving "natural" its ordinary meaning as adopted in Rizzi and Mark Makhoul together with the use of the words "before the erection of any building" supports the applicant's interpretation.

30 This is further supported by context and a purposive interpretation. The clear purpose of the provision in which the phrase "ground level" is found, is to limit the visual bulk of a proposed development by reference to ground levels. It follows that the obvious intended datum point would be the natural ground level, not an artificially modified level as being the relative level from where heights and storeys would be measured. In terms of context, it is relevant to note the different definition of ground level in cl 27 of the Ordinance (and which existed at the time cl 25B was included in the Ordinance). When the definition in cl 25B is read in the context of cl 27, it is apparent that the draftsperson intended that there would be a difference between the natural ground level and ground level existing at the time of lodgement of the development application.

31 In relation to cl 25I(8), Mr Staunton submits that this provision needs to be understood so that a proper understanding of the operation of cl 25K can be made. Clause 25K allows for an additional storey or 25% of the building footprint for sites with a steep slope. The clear intention is to allow the building footprint to be levelled out without the need to step the building down the site. This allows a six-storey building element from that point up to the top of the building. Clause 25K allows 25% of the ground floor to be used as a residence which can be out of the ground by up to1.2 m. However, if the basement car park is also included at the same level and is used only for car parking, plant and storage and is less than 1.2 m out of the ground, it becomes a storey because of cl 25I(9). Even accepting that the council has upheld objections under SEPP 1 for similar configurations, Mr Staunton submits that, in this case, the car park and the residential component are not on the same storey as there is a minimum 1.3 m height difference between the two uses. On this basis, the car park does not constitute a storey because it is not less than 1.2 m out of the ground and the residential floor is a separate floor permitted under s 25K. Mr Staunton further submits that the floor area proposed under s 25K occupies only 15% of the building footprint and not the available 25%.

The council's submissions

32 Mr Robson SC submits that in characterisation, it is necessary to have regard to the context in which the expression is used, and its purpose and policy ( Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379, Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104 and Commissioner for Railways v Agalianos (1995) 92 CLR 390). Accepting that it has been previously recognised that planning instruments infrequently exhibit internal inconsistency and apparent lack of logic ( Mark Makhoul [at 26]) Mr Robson submits that there are at least two other definitions of "ground level" within the Ordinance, neither of which are exactly the same as the definition in cl 25B. The definition dealing with "Business Centre Provisions" clearly identifies ground level is taken to be immediately prior to the lodgement of the development application. Similarly, the definition in cl 46, that regulates the height of buildings within the Ordinance area, has a similar approach.

33 Mr Robson submits that "ground level", when used in cl 25 means the existing ground level prior to the carrying out of the works for the proposed development for the following reasons:

• the purpose of cll 25I(9) and 25K is to ensure that new multi-unit housing is of a suitable design and height and has an acceptable number of storeys for a particular site,
• the purpose of the definition is to establish the relevant datum to regulate the maximum number of storeys permissible on the site,
• the reliance on the meaning adopted by the council is consistent with the underlying planning purpose of the Ordinance relating to height and design, and
• the reliance on the meaning adopted by the council is consistent with the other definitions found within the Ordinance.

Findings

34 The relevant definition from cl 25B is:

ground level means the natural level of the ground before the erection of any building or carrying out of any work.

35 In considering the competing submissions, I agree with the conclusions of Mr Staunton for a number of reasons. First, the definition should be given its ordinary meaning. The fact that there are other different definitions of "ground level" in the Ordinance, in my view, supports the submissions of Mr Staunton. The definition in cl 25B post-dates the other definitions so it is clearly open for the Court to conclude that the draftsperson, for whatever reason, sought to distinguish the definition in cl 25B from the other definitions. Clearly, the draftsperson could have adopted either of the two existing definitions. I do not accept the submissions of Mr Robson that for the sake of consistency, the definition in cl 25B should be given a similar meaning to the other definitions when the terms of the definition in cl 25B suggest the opposite.

36 Second, the terms of the definition support Mr Staunton's submissions. The definition contains no reference to a specific period of time or temporal requirement such as the time "immediately prior to the lodgement of the development application" in Part IV of the Ordinance. The relevant references, in terms of interpretation, are to the "natural level of the ground" and "before with the erection of any (my emphasis) buildings or carrying out of any work ". Without any temporal requirement, it is clearly open for the Court to conclude that a reference to the natural level of land is a reference to the state of the land in its natural state and prior to any man-made activities.

37 Third, I do not accept the submission of Mr Robson that even adopting a purposive approach, the approach of the council to the definition would not necessarily establish a relevant datum to regulate the maximum number of storeys permissible on the site or provide a consistent approach for the height and design of any new buildings. In this case, the extent of cut on the site has influenced the assessment of the number of storeys and created a situation where there is an alleged breach of the storey requirement. If council's approach was extended to include land with fill, then the potential would exist for buildings to satisfy the storey requirement but have an increased height, form and design inconsistent with other sites that do not have the same level of fill.

38 On the question of whether a SEPP 1 objection necessary I am satisfied that the question must be answered in the negative.

39 If I am incorrect, I proposed to deal briefly with the SEPP 1 objection.

The SEPP 1 objection

40 The SEPP 1 objection prepared by Mr Zylber addresses cl 25I(7) and cl 25K in a manner set out by Preston J in Wehbe v Pittwater Council [2007] 156 LGERA 446 where His Honour identifies a number of ways of establishing that compliance with a development standard is unreasonable or unnecessary. The SEPP 1 objection adopts, what is described in Wehbe as the most commonly used way of establishing that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard (Test 1).

41 The SEPP 1 objection notes that cl 25I(7), cl 25I(8) and cl 25K do not have specific objectives in the Ordinance however the SEPP 1 objection provides deemed objectives for each of the clauses from a number of sources. I did not understand the council's town planner, Mr Sanders to raise objection to the deemed objectives provided in the SEPP 1 objection although he opposed the SEPP 1 objection as he maintained that the building could be redesigned to satisfy cl 25I(7) and cl 25K.

Clause 25I(7)

42 The SEPP 1 objection relies on the objectives and controls in s 4.3 - Setbacks of DCP 55 relating to the top storey. The deemed objectives are:

• to relate to a reduction in the apparent bulk of the topmost storeys, as perceived from the public domain,
• to achieve integration of residential flat building with its existing urban environment and
• to minimise impacts on the amenity of surrounding residents in terms of overshadowing.

43 The SEPP 1 objection also addresses cl 25I(8) and relies on parts of cl 25I(1) that provides heads of consideration for multi-unit housing development and some aims and objectives of LEP 194. These are drawn together and the deemed objectives for the number of storeys are:

• to control the scale of development, in combination with other non-discretionary standard,
• to ensure that development is consistent with the desired urban character and density, and
• to have an acceptable impact on the existing residences in terms of overshadowing, natural ventilation and visual privacy.

44 The SEPP 1 objection states that using the councils approach, the ceiling of the basement car park proponent exceeds the 1.2 m height above "ground level" up to 0.98 m for a small segment approximately 45 sq m (or 5% of the lower ground basement area). As a consequence of cl 25I(9), the entire lower ground level, including the predominantly underground car park, is considered to be a storey for the purpose of determining the number of storeys. This, in turn, leads to a "technical" non-compliance with the 60% gross floor area (GFA) limit in cl 25I(7) and the 25% building footprint limit of the sixth storey in cl 25K.

45 The SEPP 1 objection states that the building represents a predominantly four-storey scale above natural ground level when viewed from the north south and east with the topmost storey setback from the main perimeter, representing 59.9% of the storey below. The height of the building is well below the controls in cl 25K, which require a storey maximum perimeter ceiling height of 16.4 m.

46 For these reasons, the SEPP 1 objection states strict compliance with the development standard is seen to be unnecessary as the development meets the deemed objectives of the standard.

Clause 25K

47 The SEPP 1 objection states that the deemed objectives for cl 25K are:

• to provide a degree of flexibility in the design for residential flat buildings on steeply sloping sites,
• to compensate for the site constraints that would prevent optimal disposition of the building bulk and
• to achieve residential densities inherent in the non-discretionary standards in Pt 3A of the Ordinance.

48 If the entire lower ground level is considered to be a storey for the purpose of determining the number of storeys then there is also a breach of the 25% building footprint limit of the sixth storey in cl 25K.

49 Strict compliance with the development standard is seen to be unnecessary as the development meets the deemed objectives of the standard governing bulk for the uppermost storey. The top storey, setbacks from the main perimeter building, contribute to modulation of the building mass and reduce the apparent building scale when viewed from the street and surrounding properties. The building follows the slope of the land by stepping down towards the west and, in conjunction with generous side setbacks, provides an acceptable transition and scale between the site and the adjoining low-density residential development.

50 The amenity impacts on the adjoining residences in terms of overshadowing, overlooking and view sharing comply with the relevant controls specified in DCP 55. The form and scale of the proposed building is consistent with the desired future character for the zone as the six storey perimeter ceiling heights are considerably lower than the maximum permissible under the Ordinance. Importantly, the development fully complies with all other non-discretionary development standards in Part 3A of the Ordinance governing height, site coverage, deep soil landscaping and zone interface setbacks and is also fully consistent with the aims and objectives.

51 For these reasons, the SEPP 1 objection states that strict compliance with the development standard is unnecessary as the development meets the deemed objectives of the standard.

Findings

52 The SEPP 1 objection helpfully provides a graphical representation of the areas that breach the storey requirement (cl 25I(7)) and breach the 25% building footprint limit of the sixth storey (cl 25K). If these breaches are considered against the deemed objectives, then I am satisfied that the deemed objectives of the development standards are achieved notwithstanding non-compliance with the standards in cl 25I(7) and cl 25K.

53 I accept the evidence of Mr Zylber that the objectives relating to bulk/mass, amenity issues such as overshadowing, natural ventilation and loss of privacy, character and density are not compromised by the breaches of the development standards, given the extent of the breaches and their particular location on the building. The general issue of loss of privacy to some adjoining properties is not a matter that I consider to be appropriately addressed by the proposed however it is not necessarily fatal to the application and is addressed later in the judgment.

54 I am satisfied that the breach of the development standards in cl 25I(7) and cl 25K is consistent with the aims of SEPP 1. I am also satisfied that compliance with the development standards would tend to hinder the attainment of the specified objects of the EPA Act. It follows that strict compliance with the development standards is unreasonable and unnecessary in this case and that the SEPP 1 objection is well founded.

The subdivision

Is the proposed subdivision boundary unnecessarily irregular and inappropriate? - the evidence

55 Mr Zanardo, the council's urban designer, states that the subdivision of the land provides an opportunity to regularise the lot pattern. Instead, the geometry of the boundary line between Lot A and Lot B is irregular, creating a 1.845 m step in the boundary and an awkward triangular piece of land. The sole purpose of this irregularity seems to be to balance the floor space between the sites. Both lots have been maximised in terms of floor space and the diagonal deviation of the boundary serves only to fine-tune the site areas to make both lots compliant with FSR controls.

56 His concern is shared by Mr Sanders who states that there is no logical or rational basis for the anomaly in the proposed boundary alignment between the lots. The manner in which the alignment deviates from what would otherwise be a conventional pattern for such allotments, is such that there is no obvious town planning purpose for its configuration.

57 Mr Zylber states that the proposed subdivision satisfies the numerical requirements for minimum street frontage and minimum area in the Ordinance. The subdivision pattern reflects the optimal disposition of the proposed buildings on the site which has been based on extensive site and context analysis and which acknowledges the sites natural constraints, urban context and desired future character for the area.

58 Mr Peter Cantrill, the applicant's urban designer, maintains that the boundary line is not inconsistent with surrounding subdivision patterns and is not unnecessary. Mr Cantrill notes that the necessity of a more regular subdivision line is not defined in the councils planning documents and that compared to many of the surrounding sites, the proposed subdivision is more regular.

Is the proposed subdivision boundary unnecessarily irregular and inappropriate? - findings

59 In accepting the general proposition that a more regular and consistent subdivision pattern provides consistency in terms of streetscape and character, I am not satisfied that the small irregularity in what is largely a regular subdivision pattern will have any influence on streetscape and character. While Mr Zanardo may be correct in that the small irregularity was designed to maximise floor space, I do not accept that this is necessarily a negative aspect of the proposed development given that the area of concern creates no visual impact and would be unknown to anyone but those persons with an intimate knowledge of site. In my view, it would not be a reason that would warrant the amendment or refusal of development application.

Does the proposed subdivision sterilise or lessen the development potential of neighbouring properties? - the evidence

60 Mr Zanardo states that proposed amalgamation seriously restricts the proper, orderly and equitable redevelopment of all the remaining undeveloped 2(d3) zoned properties to the south of the site (2A, 2, 4, 6, 8, 8A Drovers Way and 9A Gladstone Parade). In his assessment, all sites must be amalgamated in order to achieve their full redevelopment potential of an FSR of 1.3:1. A similar observation is made for the properties to the north even though Mr Zanardo accepts that the amalgamation of 4 and 4A Beaconsfield Parade cannot be regarded as "isolated" under DCP 55 as the site would satisfy the minimum site area and frontage length requirements. In his opinion, the sharply triangular geometry of the site and its location on a corner (and therefore subject to large street setbacks on two sides) means that it can only achieve 68% of the theoretical yield of an FSR of 1.3:1.

61 Mr Zylber states that 6 and 8A Drovers Way can be amalgamated to form a development site of 2700 sq m with a street frontage of 69 m. He rejects any concerns over the so-called riparian corridor given that council granted approval on 12 June 2008 for the extinguishment of the existing easement and the creation of a new drainage easement, which generally runs parallel to the southern boundary of 6 Drovers Way so that it will not impede any redevelopment of the lot. The remaining lots to the south (2A, 2, 4, Drovers Way and 9A Gladstone Parade) can be amalgamated to form a development site of 4870 sq m with a 32.5 m frontage to Drovers Way. To the north, Mr Zylber states that 4 and 4A Beaconsfield Parade can be amalgamated to form a development side of 2463 square metres with a minimum 54 m frontage to Beaconsfield Parade. Adopting the 10-12 m setbacks which are applicable to a site fronting streets less than 12 m wide (that is, Drovers Way) the site is capable of achieving an FSR around 1.3:1. Consequently, the proposed development does not sterilise or lessen the development potential of neighbouring properties.

Does the proposed subdivision sterilise or lessen the development potential of neighbouring properties? - findings

62 I agree with the conclusions of Mr Zylber on this matter for a number of reasons. First, neither the Ordinance nor DCP 55 provide for specific amalgamation of lots although other sites are identified in DCP 55. Second, I accept that the potential exists for the redevelopment of the remaining sites within the 2(d3) zone at a density around the maximum of 1.3:1, if only theoretically. Mr Zylber is correct when he states that any potential amalgamation is dependant on matters such as land availability, timing and economic considerations. Third, DCP 55 (cl 4.2, C-4) provides for a range of FSR's depending on the site area. I note that this clause provides no minimum site area for residential flat buildings as a residential flat building may be built on a site area of less than 1800 sq m. Fourth, the maximum FSR of 1.3:1 is an understandable goal however DCP 55 clearly states that the maximum FSR may not always be attainable (cl 4.2, C-1) and even if it is achieved it is not the sole determinant of built form and density (cl 4.2, C-4). Fifth, Mr Zanardo accepted that some variations to the identified setbacks of remaining lots could be made to achieve the 1.3:1 FSR.

63 In my view, the potential impact on adjoining properties would not be a reason that would warrant the refusal of development application.

Draft DCP 2006

64 The experts addressed draft DCP 2006 in some detail. Mr Zanardo particularly, produced alternate building layouts based on the controls for Precinct F. I have given no weight to this evidence because it is based on a document that never came into force even though draft DCP 2006 was endorsed by the council.

Building design

Pedestrian access and entry

65 Mr Zanardo provides an alternative layout for Buildings 1 and 2 on Lot A that in his opinion provide a better configuration. He states that the proposed entry to Building 2 is neither "dramatic" nor "appropriate" as the entry sequence is unintuitive and convoluted as the entry cannot be instinctively found from the street. In his opinion, the entry does not comply with cl 2.1.3 E-8 in DCP 55 that requires entries to be " located to relate to the existing street and be a clearly identified element of the building in the street" and the Site Access requirements in the RFDC.

66 Mr Cantrill disagrees with Mr Zanardo and states the proposal satisfies cl 2.1.3 E-8 in DCP 55 in that the proposal relates to the street and is clearly identifiable. If the concerns of Mr Zanardo relate to the path, after the entry, and not the entry itself then Mr Cantrill states that as the two buildings has one address they can have one entry. He rejects the alternate layout of Mr Zanardo as the proposed entry sequence is preferable to the long corridor proposed in this alternate layout while equal in having a single point of entry.

67 On this matter I agree with Mr Cantrill. As with a number of concerns raised by Mr Zanardo, the question to be answered by the Court is not whether there is a better design but whether the proposed design is acceptable. I also agree with Mr Cantrill that there must also be some doubt about placing any reliance on just a building footprint, in the absence of any detailed design. I am satisfied that the pedestrian access and the entry is acceptable having regard to cl 2.1.3 E-8 in that it relates to the existing street and is a clearly identifiable element of the building. I see no reason to criticise the design on the basis that this entry is used for two building.

68 Mr Zanardo raised a concern over the entry to the building on Lot B. He maintained that the entry is under a large undercroft and will not be visible from the street thereby creating potential security problems through concealment. I accept his concerns however the applicant should be given the opportunity to redesign this area to reduce any points of concealment that may impact on the security of the occupiers of the building.

Internal amenity

69 The principal concerns over internal amenity relates to solar access, building depth and natural ventilation. Mr Stephen King, an architect with particular expertise in these areas provided an assessment based on the Daylight Access requirements in the RFDC. The Rules of Thumb provide:

Living rooms and private open spaces for at least 70 percent of apartments in a development should receive a minimum of three hours direct sunlight between 9 a.m. and 3 p.m. in midwinter, in dense urban areas a minimum of two hours may be acceptable.

Limit the number of single-aspect apartments with a southerly aspect (SW-SE) to a maximum of 10 percent of the total units proposed. Developments, which seek to vary the minimum standards, must demonstrate our site constraints and orientation prohibited the achievement of these standards and how energy efficiency is addressed (see Orientation and Energy Efficiency).

70 Mr King, Mr Cantrill and Mr Zanardo agree that the proposed development satisfies the 70% minimum direct sunlight control (70.6%) and the 60% minimum ventilation control (70.6%) in the RFDC. . The experts also agree that where apartments are over 8 m in depth that only non- habitable rooms are within this zone and therefore they comply with the RFDC.

71 Notwithstanding this, Mr Zanardo maintains his objection and states that the other 30% of units do not comply with the controls that limit the quantity of apartments that receive zero sunlight. Clause 4.5.1 C-4 of DCP 55 states that "no single aspect units should have a southern orientation". He notes this control is not limited by hours. Mr Zanardo states that SEPP 65 calls for optimisation of solar access by orientating buildings north and there is another option available for the site that can achieve this objective. Mr Zanardo notes that 6 of the 68 units (8.8%) single aspect apartments are over 8 m deep. These units are not "shallow" and therefore do not capitalise on natural daylight or cross ventilation.

72 Mr King and Mr Cantrill disagree on Mr Zanardo's interpretation. They state that meeting the minimum standard is a sufficient basis for approval and to do otherwise creates unacceptable uncertainty. The effect of Mr Zanardo's interpretation would be to unreasonably limit both single aspect and dual aspect apartments facing between south-east and north-west, by effectively eliminating 180° of available orientation building facades. Mr King further states that there has never been an intention to extend the Rule of Thumb for the maximum proportion of a single aspect south facing dwellings to "capture" all other apartments with no sun on June 21. Any such dwellings are properly considered under the primary guidelines requiring a minimum of 70% of apartments to achieve three hours of sunlight between 9 a.m. and 3 p.m.

73 On this matter, I accept the evidence of Mr King and Mr Cantrill. Mr Zanardo's evidence would have greater force if the 70% figure had not been achieved. In accepting that solar access should be optimised, it does not necessarily follow that the requirements in cl 4.5.1 C-4 of DCP 55 can be readily or reasonably be achieved given the practical difficulties in addressing design, topography, orientation and lot layout. There is also some merit in the evidence of Mr King where he states that some SW-SE facing units have improved amenity by way of the expansive views available from this orientation although this would not necessarily be a reason to support the proposal if there was a greater departure from the 70% requirement. In my view, the Rules of Thumb provide a reasonable and practical balance for providing solar access to units and given the agreed compliance, I accept that inadequate solar access would not be a reason to refuse the development application. Similarly, I accept that inadequate natural ventilation would not be a reason to refuse the development application.

Floor space ratio

74 Mr Sanders states that the area of the pedestrian fire egress tunnels from the basement car park should be included in the measurement of gross floor area as cl 1.12(c) only allows "ancillary car parking and any associated internal designated vehicular and pedestrian access thereto" to be excluded from gross floor area. In his opinion, the fire egress tunnels do not fall within this exclusion in cl 1.12(c).

75 Mr Zylber states that the pedestrian fire egress tunnels performance dual function of fire egress as well as access to the car park and as such fall within the exclusion in cl 1.12(c). In any event, the area of the fire egress tunnels is around 60 sq m for Lot A and 46 sq m for Lot B and does not add to the FSR in any meaningful way. Importantly, the fire egress tunnels do not add to the bulk of the building and could be eliminated.

76 On this matter, and adopting the more conservative approach of Mr Sanders, I am satisfied that the additional FSR created by the 46 sq m of fire egress tunnels would not be a matter that would warrant the amendment or refusal of the development application. The additional gross floor area increases the FSR to around 1.31:1 rather than 1.3:1 and in my view, design objective O-1 is still satisfied as the additional floor area does not affect the "desired future landscape and built character of the area"

Communal open space

77 The issue of external communal open space centres on its quality and accessibility however Mr Zanardo and Mr Cantrill agreed that the north facing space is currently inaccessible from within the site and accessible paths should be provided. Both experts agree this can be addressed through a condition of consent.

Internal circulation

78 Mr Zanardo maintains that the some circulation areas are internalised and provide poor amenity through the need to artificially light and ventilate the spaces. This is inconsistent with cl 4.5 C-3 of DCP 55. Mr Cantrill maintains that even though some internal circulation areas do not have natural lighting and ventilation; this is not in conflict with the RFDC and would not be a reasonable ground to refuse development consent.

79 On this matter, I agree with Mr Cantrill that this is not a matter that would warrant the refusal of the development application. While cl 4.5 C-3 of DCP 55 provides that "entry lobbies and common corridors should be naturally lit and ventilated" and the RFDC (p 79) promotes natural daylight in circulation spaces although I note that the later includes the words "where possible". I am satisfied that the internal circulation areas identified by Mr Zanardo are relatively small and will not unacceptably impact on energy efficiency. I do not accept the observations of Mr Zanardo that these areas are a direct result of a building that has excessive depth.

Building separation - Lot A

80 The RFDC provides requirements for separation between buildings that require for up to 4 storeys or 12 m; a 12 m separation between habitable room/balconies, a 9 m separation between habitable/balconies and non-habitable rooms and 6 m separation between non-habitable rooms. For buildings that are 5-8 storeys or up to 25 m in height; the RFDC requires an 18 m separation between habitable room/balconies, a 13 m separation between habitable/balconies and non-habitable rooms and 9 m separation between non-habitable rooms.

81 Mr Cantrill states that the building complies with the RFDC however this was not accepted by Mr Zanardo.

82 In this case, the assessment against the RFDC is complicated due to the slope of the site that offsets the floor levels of Building 1 and 2 by around a floor level. There was no dispute that the first 4 storeys of each building were separated by distance of 12 m (if the slope of the land is ignored). As I understand, the breach of the separation distance occurs between the penthouse level of Building 2 and Level 2 of Building 1. Rather than 18 m, the separation distances are 16 m between habitable rooms and 14.5 m between bedrooms and private open space.

83 Given the slope of the site, a breach of around 2 m and general compliance with other separation distances, I am satisfied that this would not be a reason to refuse the application. I note that the councils Urban Design Consultant in the report to the council, described the breach as a "minor" concern. I would concur with this description.

Balcony size and design

84 Clause 4.4 of DCP 55 addresses built form and articulation with C-6 stating that "balconies should shall project no more than 1.2 m from the outermost part of the building façade". Mr Zanardo and Mr Cantrill agree that the variation is not an issue with the balconies to the Drovers Way elevation however they agreed that the balcony on the southwest corner of Building 2 should be modified, as a condition of consent, to project not more than 1.2 m from the outermost part of the building façade.

85 Clause 4.5.5 of DCP 55 provides requirements for outdoor living with C-2 providing specific minimum area requirements for balconies, not on ground level. For one-bedroom units; 10 sq m is required, for two-bedroom units; 12 sq m is required and for three or more bedrooms; 15 sq m is required. Of the 14 balconies identified by council as being non-compliant; the applicant recalculated these balconies electronically, and only 4 were less than the areas in cl 4.5.5. Those non-compliant balconies had variations from 0.01 sq m to 0.30 sq m. These variations are inconsequential if measured against the primary function in cl 4.5.5.

Location of air-conditioning units

86 Mr Zanardo and Mr Sanders states that 33 out of 41 air-conditioning units in Building 1 and 23 out 27 air-conditioning units for Building 2 are proposed to be located on the roof of the buildings. Having regard to be sloping topography and the likely development up-slope of the site, a 1 m parapet is a poor design solution to screen the quantity of units proposed to the roof of the building. Mr Zanardo states that the location of the air-conditioning units is inconsistent with cl 2.1.4 E- 14 in that they are not well integrated into the building form.

87 Mr Cantrill maintains that the parapet is not a poor design solution as it will screen the air-conditioning units from the public domain. If located in the basement area, as suggested by the council, the air-conditioning units would require excessive use of mechanical ventilation with associated energy usage. Mr Zylber states that the view analysis prepared for the applicant indicates that the 1 m high parapet will provide adequate screening and is sufficiently integrated with the roof design so that that the air-conditioning units will not be visible from the public domain or surrounding residences

88 Clause 2.1.4 E- 14 of DCP 55 provides that"... plant equipment should be integrated into the building form and should not be visible". In general terms, I am satisfied that the air-conditioning units can be located on the roof of the buildings and that the 1 m high parapet will effectively screen these units from the public domain and based on the site inspection; the existing units in Drovers Way. There is also some merit in the argument of Mr Cantrill that greater energy efficiency would be achieved when the air-conditioning units are located on the roof of the buildings. In coming to this conclusion, I also acknowledge that the potential could exist for the air-conditioning units to be viewed from future development higher on the ridge however a plan should be provided that shows the orderly layout of these units on the roof area of the buildings. On submission of a suitable plan, the location of the condenser units on the roof of the buildings would not be a reason to refuse the application.

Car parking

89 Mr Sanders acknowledges that the car parking requirements in cl 25J of the Ordinance are expressed as a minimum requirement and are satisfied by the proposed development. Mr Sanders notes that the car parking actually exceeds the requirements in cl 25J however as the site is not more than 400 m from a railway station, it is his opinion that the excess parking would be inconsistent with cl 25J(1) after considering "the desirability of encouraging the use of public transport". Mr Sanders also expresses concern over the irregular shape of the basement car parking and indicates that this represents a further indicator of an overdevelopment of the site.

90 Mr Zylber accepts the position adopted by the council staff in their report on the development application that raised no concern with the quantum of car parking spaces, given the parking requirements are expressed as a minimum in cl 25J. Mr Zylber states that the amount of car parking has no bearing on the shape of the basement, which simply follows the building footprint. He rejects any suggestion that the shape and size of the basement is an indicator role of an overdevelopment of the site.

91 On this matter, I agree with Mr Zylber. For Lot A, the proposal provides for 58 spaces for Building 1 (52 spaces required) and 48 spaces for Building 2 (34 spaces required) thereby providing an additional 21 spaces. For Lot B, the proposal provides for 57 spaces for Building 1 (40 spaces required) thereby providing an additional 17 spaces. Given that cl 25J expresses the amount of car parking as a minimum, the refusal of the application for excess car parking cannot be reasonably supported.

Manageable housing

92 Mr Sanders states that all manageable units are located in proposed Building 2 that is further from the street and where access is provided in a less direct manner. In his opinion, it would be more appropriate to have the manageable units located in a more accessible position.

93 Mr Zylber states that cl 25N provides that the development must provide at least 10% of manageable units within a multi-unit housing development. The clause provides no guidance on how these units need to be distributed throughout buildings. He notes that the seven manageable units are provided in Building 2 and this complies with the requirements in cl 25N. Further, Mr Zylber states that Building 2 is not inappropriate as the lack of footpaths and steep gradient in Drovers Way means that access from the street is more likely to be by car and the basement car park where lifts are available.

94 I accept Mr Zylber's evidence and accept that the location of the manageable housing units would not be a reason to refuse the development application.

Resident concerns

95 The local residents, at the site inspection and in the submissions to the council when the development application was advertised raised a number of issues that were not raised as contentions by council. These are:

Heritage

96 A Statement of Heritage Impact by Noel Bell Ridley Smith and Partners Architects Pty Ltd accompanied the development application. The statement identified the heritage item at 14 Beaconsfield Parade as being in the vicinity of the proposed development and as such, the provisions s 61E of the Ordinance apply . An assessment was undertaken of the impact of the proposed development on the heritage significance of the heritage item in accordance with the requirements of the Heritage Office where it was concluded that the proposed development is a reasonable response to the council planning controls for the area and will have limited and an acceptable impact on the heritage item and its immediate garden setting. This was a conclusion also reached by the council's Heritage Advisor.

97 In the absence of any expert evidence to suggest that these conclusions are unsound, I accept that there are no heritage reasons why the development should not proceed.

Disposal of stormwater

98 A Stormwater Drainage Assessment by Acor Appleyard Consultants Pty Ltd accompanied the development application. After discussions with council engineers and amendments to the original proposal, the council accepted that stormwater could be properly drained from the proposed development. This was not a conclusion accepted by the residents who provided an independent report from Bewsher Consulting Pty Ltd that identified shortcomings in the stormwater drainage design. The Court directed that the comments in the Bewsher report be the subject of a supplementary report from the applicant and councils drainage engineers.

99 The supplementary report addressed the issues raised in the Bewsher report in accordance with Development Control Plan No 47 - Water Management and recommended amendments that could be addressed through a deferred commencement condition; the terms of which were set out in the supplementary report.

100 In the absence of any expert evidence to suggest that these conclusions are unsound, I accept that there are no reasons why the development should not proceed based on the conclusions in the supplementary report on stormwater disposal.

Loss of significant native vegetation and fauna

101 A number of arborist reports were submitted for the site, including detailed assessments for specific trees. A Flora Assessment and Fauna Assessment by Total Earth Care Pty Ltd accompanied the development application and addressed the requirements of the Threatened Species Conservation Act 1975. This was peer reviewed by the council's biodiversity expert and following a further amended report, it was concluded that "no outstanding legislative issues remain". The council's Ecological Assessment Officer further stated that "the development proposal is deemed to be satisfactory and is unlikely to compromise the existing Blue Gum High Forest and fauna habitats within the site and locality".

102 In the absence of any expert evidence to suggest that these conclusions are unsound, I accept that there are no arborial or ecological reasons why the development should not proceed.

Loss of views

103 In accepting that some existing dwellings, particularly those in Drovers Way, are likely to lose the expansive views they currently enjoy, it would be unreasonable to refuse the development application on the grounds of view loss given that the proposed development generally satisfies the height and storey requirements in the Ordinance. Clearly, the council contemplated the likely loss of views when adopting the controls that govern development on the site.

Additional traffic and parking in the area

104 As with view loss, additional traffic will frequency the area, however this must have been contemplated when the council adopted the density and location of the higher density zones around Lindfield. On this basis, the additional traffic generated by the proposed development would not be a reason to refuse the development application.

Overlooking/loss of privacy

The evidence

105 The experts disagreed on the impact of the proposed development on adjoining residential properties at 12 and 16 Beaconsfield Parade. Both properties were inspected on the site view. Mr Sanders and Mr Zanardo focused on the relationship between Building 2 and 16 Beaconsfield Parade, consistent with the contention raised by the council. Their concerns related to the overlooking and loss of privacy and the bulk of Building 2 when viewed from this property. Mr Zylber and Mr Cantrill maintained that the relationship was acceptable given the compliant setback and the likely screening effect of proposed landscaping. Following the site inspection, Mr Sanders and Mr Zanardo also raised concern over the relationship between the proposed building on Lot B and the dwelling at 12 Beaconsfield Parade. Mr Zylber and Mr Cantrill maintained that the setback and proposed landscaping addressed any overlooking and loss of privacy for 12 Beaconsfield Parade.

The assessment approach

106 Clause 25L Zone interface addresses the transition in the scale of buildings between certain zones. Clause 25L(2) provides:

(2) The third and fourth storey of any building on land within Zone No 2(d3) must be set back at least 9 metres from any boundary of the site of the building with land (other than a road) that is not within Zone No 2(d3).

107 The RFDC provides requirements for visual privacy. One objective seeks to "provide reasonable levels of visual privacy externally and internally, during the day and at night". The Better Design Practices advocate "Locate and orient new developments to maximise visual privacy between buildings on-site and adjacent buildings..." and "Design building layouts to minimise direct overlooking of rooms and private open spaces adjacent to apartments...".

108 DCP 55 addresses visual privacy at cl 4.5.2 with design objectives that state "Visual privacy for residents and adjoining neighbours" (O1) and "Integration of architectural and landscape screening devices into the overall design of the building" (O2). The clause also provides Design Controls that specify minimum separation between proposed buildings and neighbouring buildings.

109 The council also had prepared Interface Study Part 1: Impact Assessment (the Interface Study) that seeks to address the relationship issues associated with a potential six storey building in the Residential 2(d3) zone and single dwellings in the adjoining Residential 2(c2) zone. The document specifically addresses 12 and 16 Beaconsfield Parade as well as other properties with the same interface issues.

Findings - 12 Beaconsfield Parade

110 As a starting point, it must be recognised that the council, through the Ordinance, DCP 55 and the Interface Study have recognised that a residential flat building in the Residential 2(d3) zone and single dwellings in the adjoining Residential 2(c2) zone require additional consideration. Clause 25L(2) provides that the third and fourth storey of any building on land within Zone No 2(d3) must be set back at least 9 m from any boundary of the site of the building with land (other than a road) that is not within Zone No 2(d3). Curiously, the clause contains no specific setback requirements for the floors below the third and fourth storeys so presumably a setback of less than 9 m could be contemplated.

111 The dwelling at 12 Beaconsfield Parade is an L-shaped design with living areas towards the street frontage and the bedrooms in a row, with access from a common corridor, along the common boundary with the Lot B building. The corridor has full height glazing that overlooks a tennis court, swimming pool and outdoor recreation area. The living areas and accommodation are on the same level. The dwelling has a number of unique design features the affect the relationship with the Lot B building. These include the design of most bedrooms that provide their only windows towards the common boundary with the Lot B building and glazed roofing in that part of the pitched roof that is orientated towards the Lot B building. A sitting room is also located within the bedroom wing that has glazing to the roof and a glazed elevation adjoining the Lot B building.

112 There was no dispute that the Lot B building satisfies the numerical setback standards in cl 25L, having a minimum setback of around 11.5 m and a maximum of around 18 m. Building 2 on Lot A provides a 9 m setback for the building, even though cl 25L requires a setback for only the third and fourth levels. Notwithstanding this, I am not satisfied that there is a suitable relationship between the Lot B building and Building 2 on Lot A and 12 Beaconsfield Parade. In my view, there is some merit in the argument put by Mr Sanders that some consideration needs to be given to the amount of units that overlook 12 Beaconsfield Parade and that the establishment of a suitable relationship goes beyond just physical separation.

113 The Interface Study that seeks to address the specific relationship issues associated with a potential six storey building in the Residential 2(d3) zone and single dwellings in the adjoining Residential 2(c2) zone provides little, if any help. This document places almost total reliance on the existing vegetation to overcome any interface issues, however based on Mr Zanardo, assessment, much of the existing vegetation is to be removed. I also do not accept Mr Cantrill's evidence that the vegetation provided in the landscaping plan provides a reasonable response to the question of overlooking, given that Mr Cantrill's evidence was that it would take at least 5 years for the landscaping to be established. This timeframe also assumes that the landscaping will remain healthy and will be maintained. Given the potential impact on 12 Beaconsfield Parade, I do not accept this is a reasonable assumption. This however is not necessarily fatal to the application but a more significant attempt should be made to address the overlooking issue through building design rather than rely on landscaping to achieve screening and a reasonable relationship between development in the different zones.

114 I propose to allow the applicant time to amend the application to provide for:

• fencing between the proposed building on Lot B and Building 2 on Lot A and 12 Beaconsfield Parade that will prohibit viewing into the dwelling at ground level and provide a landscaped outlook from the rooms along the bedroom wing of the dwelling. This may necessitate the fence being located off the common boundary and landscaping provided between the fence and the common boundary, and
• the amendment of the balconies and windows on the levels above ground level where they relate to living areas so that there is no direct overlooking into 12 Beaconsfield Parade. This may be achieved through measures such as highlight windows, screens, extended planter boxes on balcony edges or other measures. Plans are to be provided that indicate sightlines from these locations to show that no direct overlooking is possible. Balconies attached to bedrooms should also be reduced to a width that does not allow seating or the congregation of people. No amendment is required to the windows relating to bedrooms given the lower usage of these rooms and the setbacks that exceed the numerical requirements in cl 25L. I am also mindful that development of the size and form proposed in this application has been contemplated on the site from at least May 2004.

Findings - 16 Beaconsfield Parade

115 The dwelling at 16 Beaconsfield Parade is a large 2- storey dwelling located on a battle-axe block that is lower than Building 2 on Lot A. The change in level is addressed through a garden and retaining wall. Lot A shares around 80% of the common boundary with 16 Beaconsfield Parade. Adjoining the common boundary at 16 Beaconsfield Parade is a paved area, which appears to be used for car parking and access to the dwelling, a tennis court and the dwelling that contains a casual living area facing the tennis court. The nearest part of the dwelling is the kitchen window that faces the common boundary at a distance of 7.5 m.

116 While Mr Zanardo expressed the view that the upper levels of the building should be set back further to reduce its bulk, cl 25L provides a 9 m setback for only the third and fourth levels. On this basis, it would be unreasonable to require a greater setback than required by cl 25L. I accept that there is an unsatisfactory relationship between proposed Building 2 on Lot A however this can be remedied in a similar fashion to 12 Beaconsfield Parade.

117 I propose to allow the applicant time to amend the application to provide for:

• fencing between the proposed Building 2 on Lot A and 16 Beaconsfield Parade that will prohibit viewing into the dwelling at ground level, and
• the amendment of the balconies and windows on the levels above ground level where they relate to living areas so that there is no direct overlooking into 16 Beaconsfield Parade. This may be achieved through measures such as highlight windows, screens, extended planter boxes on balcony edges or other measures. Plans are to be provided that indicate sightlines from these locations to show that no direct overlooking is possible. Balconies attached to bedrooms should be reduced to a width that does not allow seating or the congregation of people. No amendment is required to the windows relating to bedrooms given the lower usage of these rooms and the setbacks exceed the numerical requirements in cl 25L. I am also mindful that development of the size and form proposed in this application has been contemplated on the site from at least May 2004.

Conditions in dispute - the subdivision appeal

Deferred commencement condition 1

118 This condition requires the applicant to submit documentary evidence that the right of carriageway over 8a Drovers Way has been amended to include 8 and 10a Beaconsfield Parade within a 12-month period. The applicant opposes this condition and states that an operational condition, rather than a deferred commencement condition, should be imposed as no issue arises in relation to vehicular access until the subdivision has been registered. The appropriate time period for the satisfaction of the condition of consent should also be the normal 5-year period.

119 I accept the applicant's submissions on this condition.

Deferred commencement condition 2

120 This condition requires the applicant to submit documentary evidence that Lot A benefits from a drainage easement over the downstream properties as far as the public drainage system. The applicant opposes this condition on the basis that the drainage easement should be condition of consent on the Lot A consent rather than the subdivision consent as the easement is necessary only for the drainage of stormwater for the proposed construction of the building on Lot A.

121 I accept the applicant's submissions on this condition.

Conditions in dispute - the Lot A appeal

Deferred commencement condition 1

122 This condition requires the applicant to provide documentary evidence within a 12-month period that the subdivision approval has been registered. The applicant opposes the condition but would accept an operational condition, rather than a deferred commencement condition, to be satisfied within the normal 5-year period of a development consent.

123 I accept the applicant's submissions on this condition.

Condition 6

124 This condition seeks to impose a condition requiring the landscaping to be native plant stock from seed/material from within 5 km of site. The applicant opposes this condition on the basis that it is unreasonable and impractical and imposes an excessive economic and delay burden on the development. The applicant proposes an amendment that seeks to adopt the general approach of the council but include words such as "to the extent reasonably practicable".

125 I accept the applicant's amendment to this condition.

Condition 14

126 This condition requires the submission of a Construction Traffic Management Plan to the council for approval. The applicant objects to the specific requirement in the condition that no truck movements are to occur in Drovers Way, Beaconsfield Parade and the Pacific Highway during the hours of school drop-off (8 a.m. to 9:30 a.m.) and pick up (2:30 p.m. to 4 p.m.) on schooldays. The applicant submits that Lot A is located on a different street to the school which has a street frontage to Gladstone Parade as well as separate street frontages to both the Pacific Highway and Grosvenor Road. There is no public footpath on Lot A's side of Drovers Way. The public footpath is located on the other side of Drovers Way, so there will be no conflict between pedestrians and construction traffic.

127 The specific direction in the condition that no truck movements are to occur in Drovers Way, Beacons feel Parade and Pacific Highway during the hours of school drop-off should be deleted however the concerns of the council regarding conflict between truck movements and school movements will need to be addressed and justified in the Construction Traffic Management Plan.

Condition 23

128 This condition states that no work shall commence until canopy seed and another plant material from indigenous plants on the site are collected by a qualified bush regenerator and forwarded to the council for propagation.

The applicant maintains that this condition is unreasonable as it is dependent on the seeding periods for the plants or if those seeds cannot be found or are not successfully propagated, the development will be unable to be implemented.

129 In accepting that the collection of canopy seed and other plant material is a worthwhile exercise, the condition is clearly uncertain and potentially prejudices the commencement of the proposed development. If an agreed condition cannot be formulated that allows for the collection of material from the site in a manner that does not prejudice the ongoing development, I agree with the applicant's submission and allow the deletion of the condition.

Conditions in dispute - the Lot B appeal

Deferred commencement condition 1

130 See comments on deferred commencement condition 1 for Lot A in pars 124 and 125.

Condition 4

131 This condition addresses the monitoring of shallow groundwater and the design of the groundwater mitigation system. The applicant does not oppose the monitoring program per se, but opposes those parts of condition 4 that state that no work is to proceed until council has approved the monitoring program and mitigation system. The applicant proposes amendments to part condition 4(c), condition 4(d), condition 4(e), condition 4(g) and condition 4(h) on the basis that the monitoring program cannot be approved after it has commenced. There is also no need for the approval of the monitoring data. Also, a mitigation system cannot be designed until all of the data has been collected.

132 In my view, the amendments proposed by the applicant do not fundamentally change the intent of condition 4 and as such are acceptable.

Condition 6

133 See comments on condition 6 for Lot A in pars 126 and 127.

Condition 14

134 See comments on condition 14 for Lot A in pars 128 and 129.

Condition 25

135 See comments on condition 23 for Lot A in pars 130 and 131.

Amended plans and conditions

136 The judgment identifies a number of matters that require further consideration by the applicant by way of amendments to the plans and conditions. These are identified in pars 113 and 116. Other matters that should be included in the amended plans and were addressed by the experts include:

• the relocation of the ventilation stack adjoining 16 Beaconsfield Parade,
• the redesign of the entry to the building on Lot B to reduce the potential points of concealment,
• a plan showing the location of the air conditioning condensers on the roof,
• the additional paths to the communal open space.
• the widening of the path to the front entrance,
• the modification of the balcony on the southwest corner of Building 2, and
• the agreed deferred commencement condition on stormwater disposal.

Interim findings

137 Interim findings were handed down on 11 January 2012 that required amendments to the plans and conditions. A timetable was discussed with parties that resulted in the applicant providing amendments to the plans and conditions on 8 February 2012, the council responding on 17 February 2012 and the applicant providing a response to the council's comments on 23 February 2012. The remaining differences between the parties are:

The Lot A appeal

Screens

138 The height of the fence between Lot A and 16 Beaconsfield Parade is 2.1 m. The council submits that the additional height above a standard 1.8 m high fence will not result in any material improvement to the amenity of the residents of 16 Beaconsfield Parade, however I agree that a height of 2.1 m is reasonable given the need to maximise privacy between the two properties.

139 The proposed screening measures for the proposed building on Lot A include vertical 1.7 m obscure screens, outward canting louvred privacy screens and vertical screens located centrally in planter boxes, depending on the level of the view lines to the adjoining property. These were seen by the council to be a poor design solution given their height and verticality and which will have a detrimental impact on the amenity of future occupants. The applicant submits that the privacy screens are an expected and inevitable consequence of the Courts interim findings and the vertical louvred screens are seen as a preferable treatment to smaller windows with a raised sill height of 1.7 m. The vertical louvres allow viewing into the existing vegetation in an oblique direction while still obscuring the direct view into the neighbouring property.

Planter boxes

140 The applicant and the council also disagree on the screening in the planter boxes. The council submits that this is impractical as it will not allow for reasonable maintenance of the planter box. The applicant responds by stating that the central location was considered preferable, as the location on the outer edge would be more visible when viewed from the adjoining properties. If located in the centre of the planter box, the screens will be largely screened from view by the proposed planting and therefore the external appearance of the building will be improved. The applicant does not accept that the maintenance of the planter box is so difficult that it would outweigh the reduced visibility from adjoining properties.

141 While the privacy screens provide some reduced level of amenity for the occupants of the residential flat building, but if balanced against the need to provide a reasonable level of privacy for adjoining residential properties, I am satisfied that the privacy screens are appropriate and will not significantly impact on the amenity enjoyed by future occupants from these locations. I also accept the applicant's position on the location of the screen in the planter box for the reasons explained by the applicant.

Balcony size

142 The council submits that balconies attached to bedrooms have not been reduced sufficiently in width that will discourage sitting or the congregation of people in these areas, however the applicant submits that balcony widths are generally in the order of 2 m with the exception of a balcony off a master bedroom that is 2.045 m in width.

143 In my view, the balcony widths are acceptable given the use of the adjoining rooms as bedrooms. I accept that the width of the balconies will not encourage their regular use, or for people other than the occupants of the apartment and consequently will not have unacceptable impacts on the privacy of the adjoining property. Balconies that exceed 2 m are only marginally larger and would not encourage greater use than the balconies with a width of 2 m or less.

The Lot B appeal

144 The fencing and landscaping between Lot B and 12 Beaconsfield Parade was seen by the council as not providing a landscape garden from the dwelling at 12 Beaconsfield Parade however I agree with the applicants submission that with an increase in height of 2.1 m and landscaping that will achieve a mature height of 5 m is preferable, provided that the species does not just provide a canopy but also provides vegetation at the lower level to provide screening of the proposed fence.

145 For reasons set out in the previous paragraphs on Lot A I accept the proposed screening is acceptable. While the privacy screens and planter boxes provide some reduced level of amenity for the occupants of the residential flat building, I am satisfied that the screens will not significantly impact on the amenity enjoyed by residents from these locations but will provide significant benefits to the residents of 12 Beaconsfield Parade.

Gross floor area

146 The council submits that in accordance with the definition of "gross floor area" in cl 25B of the Ordinance, any balustrade or privacy screen exceeding 1.4 m in height is deemed to be an outer external enclosing wall. Some balconies therefore do not meet the exclusion from the definition of a gross floor area and as such become gross floor area of the purpose of calculating floor space ratio. The council's also submits that the enclosed nature of the balconies also breaches the objectives of cl 4.5.5 of DCP 55, where it states that "the primary function of outdoor living space is to provide a high level of amenity for the occupants with access to fresh air in daylight/sunlight..."

147 The applicant submits that any reference to the Ordinance is irrelevant as there is no applicable control on gross floor area in the Ordinance. In so far as the same definition of gross floor area appears in DCP 55; the applicant submits that the vertical louvred privacy screens are not "an external enclosing wall" as they do not close in the balcony. They are not a wall because they are open between the vertical blades and will provide access to fresh air daylight/sunlight.

148 As I understand, the concerns expressed by the council relate firstly to, an increase in floor space ratio based on the definition of gross floor area and secondly, the quality of the balcony areas. While a number of the screening devices exceed 1.4 m in height, I am not satisfied that, even if they are assessed as gross floor area, that it would necessarily lead to a conclusion that the floor space ratio was unacceptable. Given that the principal role of the areas in question, is to provide an outdoor living space, and the screening devices are essentially lightweight structures attached to the balustrades or planter boxes of the balconies, I see no conflict with the relevant part of Density design objective O-1 in cl 4.2 of DCP 55 that seeks a "Development Density that is in keeping with... the desired future landscape and built character of the area". Similarly, I see no conflict with clause 4.5 .5 relating to Outdoor living in that the areas provide an acceptable level of amenity for the occupants with access to fresh area in daylight/sunlight. While I would accept that the balconies do not necessarily provide a "high level of amenity for the occupants", I am satisfied that a more than acceptable level of amenity is provided, given the conflicting objective of maintaining a reasonable level of privacy to the adjoining residential properties.

Kitchens windows

149 The council submits that kitchen windows of units 2G-06 and 2F-06 have not been screened and fall within the definition of a "living area". The applicant disagrees and submits that the council has not provided any authoritative definition to justify the claim that the kitchens are living area. Relevantly, DCP 55 defines "living room" and includes "eat in kitchen areas", and as these areas are not eat in kitchens, they cannot be defined as the living areas.

150 On this matter I agree with the council. In my view, it is not necessary to accurately define what is a living area but it is reasonable rely on a more common sense approach of including areas that are used by the occupants of the units regularly and provide the opportunity for overlooking. The kitchen windows of units 2G-06 and 2F-06 satisfy this general description and as such should be screened or the windows treated so that overlooking cannot occur (see condition 1 - Amendments). I note that the kitchen layout allow the occupants of the units to stand directly at the window to obtain views to the adjoining residential properties.

Bedroom windows

151 The council submits that it is possible to look from Unit 2L-GO2 into the second floor bedroom windows of 16 Beaconsfield Avenue. The applicant submits that no changes are required to address this relationship as it is unreasonable for the living room of a ground floor unit to be screened from an upper level neighbouring bedroom.

152 I agree with the applicant's submission.

The entry to Building B

153 Amendment to the entry to Building B was required " to reduce the potential points of concealment". The amendment provides for the widening of the entry area by the deletion of the fire escape corridor on the western elevation together with the use of full height glass in the entry foyer doors and windows. As all areas of the Building B entrance are now visible from both the street and from the front pedestrian entrance, I accept the applicant's amendments.

Location of the air-conditioner condensers

154 The amendment was to provide a "plan showing the location of the air conditioning condensers on the roof". The applicant provided further notations regarding the air-conditioner condensers, however I am not satisfied that this plan provides sufficient information for the approval of the required plan. At a minimum, the plan should provide, in plan and elevation form, the number and dimensions of the air-conditioner condensers, the location that minimises the area required to house the air-conditioner condensers in the least obtrusive location and details of the parapet to screen the air-conditioner condensers.

155 A condition of consent will be placed on the consents to provide these details (see condition 1 - Amendments).

Communal area access

156 An additional accessible path to the northern area of the common open space in Lot B has been provided, and notwithstanding the concerns of the council that the communal open space area is inaccessible to some units that use the southern lift core, I agree with the applicant that as every resident will have a security access card that will allow access to the ground floor, their apartment floor and the relevant car park levels, access is still available to the communal open space for residents using the northern lift core, even if it is more circuitous for some residents.

Stormwater disposal

157 The applicant and the council agreed on the terms of a condition to address this matter however the applicant seeks the condition to be an operational condition, whereas the council proposes the condition to be a deferred commencement condition although the council would accept the condition as an operational condition but to be satisfied prior to the issue of a Construction Certificate.

158 Given the agreement of the council, I accept that the condition can be an operational condition but to be satisfied prior to the issue of a Construction Certificate. A further modification to the condition was proposed by the council and accepted by the applicant.

BASIX Certificate

159 The applicant and the council differed on the species of planting included as part of the BASIX Certificate as a low water use species although I accept the applicants option of addressing this dispute through a condition of consent that identifies a different species to that relied upon by the applicant (see condition XX).

Other matters

160 The council, in their submission on 17 February 2012, state;

Council considers that further amendments need to be made to the amended plans in order to address your interim findings adequately. If the plans are further amended to address the submissions, council will further consider the amendments, and its position in respect of the Application being granted leave to rely upon those plans at that time, including issues arising, including under section 97B of the Environmental Planning and Assessment Act 1979 (EPA Act).

Should the Applicant seeks to rely on the amended plans and the other documents as provided, we will seek council's instructions on any motion would be Applicant to be granted leave to rely on the amended application. We note that Council may seek be heard on any application.

161 On the council's first paragraph, I have found that the majority of the amendments provided by the applicant, in response to the interim findings, were acceptable. In those instances where I preferred the council response to the amendments, the changes were minor and were appropriately dealt with by amendments to the conditions. I see no benefit in any further submissions by the parties given that ample opportunity was provided for parties to fully address the matters raised in the interim findings and the Courts desire for the "quick, just and cheap" disposal of the proceedings.

162 On the question of s79B costs, I note that as the development application was made prior to February 2011and as such, s 79B(1) relevantly states:

1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment).

163 In this case, the amendments to the development application were made at the direction of the Court and were not an amended application filed by the applicant pursuant to s 79B(1) so, in my understanding, an application for costs under s 79B is not available to the council.

164 In response to the council's second paragraph above, it must be remembered that the amendments were at the direction of the Court and importantly, were largely a direct response to the issue of overlooking and loss of privacy to the two adjoining residential properties to the west. It is also relevant that the overlooking and loss of privacy issue associated with the residential dwelling at 12 Beaconsfield Parade was initially not seen by the council as a concern and was not identified in the council's contentions. It was only after the Court raised the potential problem during the proceedings that the council's experts expressed concern over the potential overlooking and loss of privacy issues to this property.

165 The council also brought to the Court's attention, a planning proposal that was placed on public exhibition on 6 February 2012 to amend the Ordinance and that affects the site. Given the infancy of this proposal, no weight should be given to its contents.

Orders

166 In Appeal No 10446 of 2011, the orders of the Court are:

1. The appeal is upheld.

2. DA 0986/08 for the consolidation of the five lots consisting of 6, 6A, 8, 10 and 10A Beaconsfield Parade and the resubdivision of the lots into 2 lots (Lots A and B) is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 3 and A.

167 In Appeal No 10444 of 2011, the orders of the Court are:

1. The appeal is upheld.

2. DA 0987/08 for the demolition of three existing dwelling houses and the construction of 2 x part 5/6 storey residential flat buildings containing 68 units on proposed Lot A in the consolidation and resubdivision of 6, 6A, 8, 10 and 10A Beaconsfield Parade, Lindfield is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 3 and B.

168 In Appeal No 10447 of 2011, the orders of the Court are:

1. The appeal is upheld.

2. DA 0988/08 for the demolition of an existing attached dual occupancy and single dwelling and the construction of a part 5/6 storey residential flat buildings on proposed Lot B in the consolidation and resubdivision of 6, 6A, 8, 10 and 10A Beaconsfield Parade, Lindfield is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 3 and C.

G T Brown

Acting Senior Commissioner

Amendments

31 July 2012 - typographical error - "computing" changed to "competing"
Amended paragraphs: 35

Decision last updated: 31 July 2012