Land and Environment Court New South Wales

• Medium Neutral Citation: Al Maha Pty Ltd v Marrickville Council [2013] NSWLEC 1072
• Hearing dates: 7, 8 & 28 February 2013. Further submissions on 19 April 2013.
• Decision date: 26 April 2013
• Jurisdiction: Class 1
• Before: Tuor C

Decision

See paragraph 95

• Catchwords: DEVELOPMENT APPLICATION: Mixed use development. Exception to floor space ratio development standard. Impact of parking access. Inconsistency or compatibility of number of storeys control in DCP with height control in LEP.
• Legislation Cited: Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Amendment Act 2012; Land and Environment Court Act 1979; Marrickville Local Environmental Plan 2011; State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings; State Environmental Planning Policy No 32 - Urban Consolidation (Redevelopment of Urban Land); State Environmental Planning Policy No 1 - Development Standards
• Cases Cited: North Sydney Council v Ligon [No 2] (1996) 93 LGERA 23; PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355; Wehbe v Pittwater Council [2007] NSWLEC 827; Zhang v Canterbury Council [2001] NSWCA 167
• Category: Principal judgment
• Parties: Al Maha Pty Ltd (Applicant); Marrickville Council (Respondent)
• Representation: Counsel; Mr P Clay SC (Applicant); Mr A Pickles (Respondent); Solicitors; Mr C Drury of Sparke Hellmore (Applicant); Mr J Strati of Marrickville Council (Respondent)
• File Number(s): 10823 of 2012

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of a development application (DA201200225) for a mixed use development at 32-70 Alice Street, Newtown (site).

2 The key issues in dispute are the non compliance of the development with the floor space ratio (FSR) control in Marrickville Local Environmental Plan 2011 (MLEP) as well as the appropriateness of a "mezzanine" level on the Alice Street building and a secondary car park driveway off Pearl Street.

Site and locality

3 The site is located on the southern side of Alice Street, in a block bounded by Pearl Street, Walenore Avenue and Alice Lane and comprises one allotment described as Lot 203 in DP 772164. It is rectangular in shape with a primary frontage of approximately 121.3m to Alice Street, secondary frontages of 64.1m to Pearl Street and 61.1m to Walenore Avenue and rear boundary of 121.3m to Alice Lane. The area of the site is approximately 8,297sqm.

4 The existing improvements on the site include three attached industrial masonry buildings and a car parking area containing approximately 90 car spaces. Vehicular access is currently provided off Pearl Street and Walenore Avenue.

5 The site adjoins residential development on all sides, ranging in height from one to four storeys to the north and west and single and two storeys to the east and south. A public reserve, known as Matt Hogan Reserve, is opposite the site on the northern side of Alice Street and the King Street commercial/retail strip is about 130m west of the site.

Background and proposal

6 Al Maha Pty Ltd (applicant) lodged the original application with Marrickville Council (council) on 18 June 2011 seeking consent to demolish the existing buildings and carry out preparatory site works and erect a mixed use development containing 7 retail tenancies, 206 residential dwellings and 163 car parking spaces, associated landscaping, drainage and related works.

7 The proposal included buildings along each street frontage and internal to the site forming a central courtyard on the western part of the site and a "pocket park" on the eastern part of the site. The height of buildings ranged from 3 to 6 storeys with an FSR of 2.334:1 (19,366.7sqm).

8 The application involves development for which the Joint Regional Planning Panel (JRPP) is the consent authority. The JRPP considered a report in relation to the application at its meeting of 21 November 2012 and resolved to defer its determination to allow the applicant to prepare amended plans that reduced the FSR of the development, however, these were not lodged with the JRPP and the application remains undetermined.

9 The applicant lodged an appeal against the deemed refusal of the application on 14 August 2012 and was granted leave to rely on amended plans on 19 December 2012. The plans sought to address the changes recommended by the JRPP.

10 The amended application was for a mixed use development comprising 181 units and parking for 170 cars. The FSR was reduced to 2.106:1 (17,475.2sqm) and the height of some buildings was also reduced, including the removal of level 6 on the building fronting Wallenore Avenue.

11 On the first day of the hearing, the applicant proposed further changes to address the contentions of council in relation to FSR and the number of storeys of the development. The applicant provided concept plans to illustrate the proposed changes, which were agreed to, in principle, by council subject to detailed assessment. The hearing was adjourned and the changes were renotified to objectors. At the resumption of the hearing on 28 February the applicant sought and was granted leave to rely on the further amended plans. The changes include an additional driveway entrance on Pearl St to provide access to the upper level car park, converting the Level 6 units to be a "mezzanine" for the units below and internal changes to both levels. The number of units has been reduced to 174 and the FSR to 2.036:1 (16,894.43sqm) the unit mix was amended and the number of car spaces increased to 176.

12 At the request of the Court, the hearing was reopened on 19 April 2013 for submissions on the Environmental Planning and Assessment Amendment Act 2012 (Amending Act) which came into force on 1 March 2013. The parties also provided further information on disabled access and overshadowing of the courtyard and pocket park.

Planning controls

13 Clause 2.3 of MLEP refers to the land use table for each zone, which specify the objectives for development in the zone, development which may be carried out without consent, with consent and that is prohibited. The site is within Zone B4 - Mixed Use. Residential accommodation, other than certain types such as dwelling houses and shop top housing, is prohibited in the zone. However, cl 2.5 of MLEP permits additional uses for particular land as specified in Schedule 1 despite anything to the contrary in the land use table or other provisions of the Plan. The site is included in Schedule 1 and development for the purpose of residential accommodation is permitted with consent, but only as part of a mixed use development. Clause 2.3 (2) requires that regard must be had to the objectives of the zone.

14 The land which adjoins the site on the opposite side of Pearl Street, Alice Lane and Walenore Avenue is zoned R2 Low Density Residential. Land on the opposite side of Alice Street is predominantly zoned R2, however, other land is within the R1 General Residential, R3 Medium Density Residential and R4 High Density Residential zones, which generally reflects the varied form of existing residential development in Alice Street.

15 MLEP contains development standards that are relevant to the application, in particular, cl 4.3 - Height of Buildings and cl 4.4 - Floor Space Ratio. The maximum height permissible on the site is 20m and the maximum FSR is 1.85:1. The proposal complies with the height control but exceeds the FSR control. The applicant seeks to justify the contravention of the FSR standard in accordance with cl 4.6 of MLEP.

16 Clause 4.6 permits exceptions to development standards in MLEP, including the FSR control. It relevantly provides:

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Director-General has been obtained.

(5) In deciding whether to grant concurrence, the Director-General must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Director-General before granting concurrence.

17 Marrickville Development Control Plan 2011 (MDCP) includes general controls for development in Part 2, including parking requirements (2.10) and solar access and overshadowing (2.7). Part 5 includes controls for commercial and mixed use developments. Part 9 of MDCP identifies planning precincts, including the Camdenville Precinct (9.14), within which the site is located. It describes the existing (9.14.1) and desired future character (9.14.2) sought for the Camdenville Precinct and provides specific planning controls for the site (9.14.5.1) (Masterplan). The controls include the number of storeys for buildings on the site, which range from two storeys (three overall) to five storeys (C2).

18 Marrickville Development Control Plan 2011-Amendment No 1 (Draft DCP) proposes to amend the parking provisions in Part 2.10 of MDCP. The Draft DCP has been exhibited.

19 Marrickville Section 94/94A Contributions Plan 2004 (Contributions Plan) applies to the development.

20 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) applies to the development. Under SEPP 65, the Residential Flat Design Code (the Code) must be considered.

Environmental Planning and Assessment Amendment Act 2012

21 Following the hearing, the applicant, with the consent of council, provided a copy of the Amending Act. The parties made further submissions on the 19 April 2013 on the relevance of the amendments to the development application for which consent is sought.

22 The transitional provisions in cl 143 of Schedule 6 to the EPA Act provide:

143 Application of DCP amendments

(1) The amendments made by Schedule 1 [1]-[3] and [5] to the amending Act extend to development control plans in force immediately before the commencement of those amendments.

(2) Section 79C (3A), as inserted by the amending Act, does not apply to the determination of a development application made before the commencement of section 79C (3A).

23 The amendments made by Schedule 1 [1] - [3] and [5] are as follows:

[1] Section 74BA

74BA Purpose and status of development control plans

(1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development:

(a) giving effect to the aims of any environmental planning instrument that applies to the development,

(b) facilitating development that is permissible under any such instrument,

(c) achieving the objectives of land zones under any such instrument.

The provisions of a development control plan made for that purpose are not statutory requirements.

(2) The other purpose of a development control plan is to make provisions of the kind referred to in section 74C (1) (b)-(e).

(3) Subsection (1) does not affect any requirement under Division 3 of Part 4 in relation to complying development.

[2] Section 74C Preparation of development control plans

Omit section 74C (1) (a). Insert instead:

(a) to provide the guidance referred to in section 74BA (1), or

[3] Section 74C (5)

Omit the subsection. Insert instead:

(5) A provision of a development control plan (whenever made) has no effect to the extent that:

(a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or

(b) it is inconsistent or incompatible with a provision of any instrument.

[5] Section 79C Evaluation

Insert after s79C (3):

(3A) Development control plans

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards-is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards-is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

24 The parties agree that under cl 143(2), the amendment made by Schedule 1 [5] to insert s 79C(3A) does not apply to the determination of a development application made before the Amending Act commenced and is therefore not relevant to the application before the Court.

25 The parties also agree that the amendments made by Schedule 1 [1] and [2] apply to existing development control plans and development applications made after the commencement of the Amending Act but would not effect the consideration of the existing application under s 79C(1). Consistent with the decision in Zhang v Canterbury Council [2001] NSWCA 167, MDCP therefore remains the focal point for consideration of the application.

26 However, the Parties agree that the amendment made by Schedule 1 [3] to s 74C(5) is relevant to the consideration of the application. Section 74C(5) expressly states that provisions of a DCP that are the same or substantially the same or that are inconsistent or incompatible with the provisions of an LEP are of no effect and will therefore not apply, even to applications lodged before the commencement of the Amending Act.

27 The parties agree that the number of storeys control in Part 9.14.5.1 of MDCP is not the same or substantially the same as the control in cl 4.3 of MLEP. They are both height controls but they deal with different aspects as the LEP control measures the height of a building in metres, whereas the DCP control limits the number of storeys but places no limitation on the height of each storey or the overall height of the building.

28 The parties disagree on whether the DCP storey control is inconsistent or incompatible with the height of building control in the LEP. The council referred to the decision in North Sydney Council v Ligon [No 2] (1996) 93 LGERA 23 which deals with inconsistency in the context of an LEP and DCP. The Court of Appeal held at 31:

I see no reason why a development control plan, in providing more detailed planning considerations may not, by imposing criteria by way of restriction or specification of necessary requirements to be met before the development consent contemplated by a North Sydney Local Environmental Plan is granted, should not be regarded as conforming with the wider North Sydney Local Environmental Plan. In my opinion that aspect of the decision in Guideline Drafting should be regarded as wrongly decided... A detailed plan which contained a provision contrary to the wider plan would not be in conformity with it, but a provision which is restrictive or prohibitive unless certain conditions are met is not such a contrary provision.

29 The council submits that in this case there is no inconsistency or incompatibility as:

On the one hand the LEP contains a maximum height control in metres. There is a different type of control in the DCP. It limits the number of storeys, but does not specify the height of each storey. Thus, there is no inconsistency, they are just different controls having different intended outcomes.

30 The applicant submits that the control in MDCP is inconsistent or incompatible with the control in MLEP as both controls deal with the height of buildings. In the circumstances of this case, compliance with the number of storeys in MDCP would prevent the achievement of the maximum permissible height in MLEP.

Findings

31 The 20m height limit in cl 4.3 on MLEP is a site specific control. However, it cannot be achieved over the whole site due to the FSR limits under cl 4.4 of MLEP. Both the height and the FSR standards are maximum controls and their attainment is dependent on satisfying the objectives for the controls. The objectives of both controls require consistency with the desired future character for an area. The desired future character for the Camdenville Precinct is set out in Part 9.14.2 of MDCP, which in turn refers to the Masterplan for the site in Part 9.14.5.1. The Masterplan provides guidance on the distribution of the height and FSR permissible under MLEP, through its provisions such as number of storeys, setbacks and public open space.

32 I accept the parties' agreement that the number of storeys control in MDCP is not the same or substantially the same as the height control in MLEP. I also accept the council's submission that the number of storeys in MDCP is also not inconsistent or incompatible with the height control in MLEP. The number or storeys and number of metres both deal with aspects of height, but the DCP control provides more detail on how the maximum height may be distributed on the site to achieve the objectives of the height control. However, in reaching this conclusion, I do not accept that the achievement of the maximum height can be limited on the basis of numerical compliance with the number of storeys, if the objectives of the height control are met. The objectives of the height control in cl 4.3 of MLEP are:

(a) to establish the maximum height of buildings,

(b) to ensure building height is consistent with the desired future character of an area,

(c) to ensure buildings and public areas continue to receive satisfactory exposure to the sky and sunlight,

(d) to nominate heights that will provide an appropriate transition in built form and land use intensity.

33 No evidence was provided that the objectives of the height control are not met, other than consistency with the desired future character resulting from non compliance with the storey control in the DCP. This is discussed later in the judgement.

Evidence

34 The Court visited the site and heard from objectors. Their main concerns were that the proposal was an over development of the site and was inconsistent with the height, bulk and scale of surrounding residential development. They considered the development would result in increased traffic and demand for parking and these impacts had not been adequately assessed. It would adversely impact on residential amenity through overlooking, noise and loss of solar access. They were concerned about the commercial uses and the potential for these to be used for restaurants and night time activities, which would conflict with the adjoining residential uses.

35 I acknowledge the issues raised by objectors, however, some concerns relate to the planning controls, which the objectors consider are inappropriate. The Court must consider the development within the framework established by the planning controls. The increase in density and bulk of the development will result in impacts of overlooking, overshadowing and increased traffic, but are reasonable provided they are consistent with those envisaged by the planning controls.

36 The Court heard expert planning evidence from Mr R Chambers, for the applicant, and Ms H Atwal, for the council, who also provided urban design evidence with Ms G Morrish, for the applicant. Mr C McLaren, for the council, and Mr R Nettle, for the applicant, provided traffic evidence. Mr S Thorne, the architect of the development application, explained the amendments to the proposal.

Parking and traffic

37 Mr McLaren and Mr Nettle disagreed on the methodology to derive the traffic generation rates. However, the experts agreed that SIDRA modelling is the most appropriate tool to measure the impact on the road system. Mr McLaren noted that the planning controls envisage higher density development on the site and that a development, which complied with the FSR control in MLEP would produce less vehicle trips in the AM and PM peak than the proposed development, which exceeds the FSR control. However, the experts agreed the "net increase of the proposed development will not significantly impact on the surrounding road network provided residential amenity is protected". They also agreed the Draft DCP provided appropriate parking rates for the development and that the location of a driveway in Pearl Street was preferred over Wallenore Avenue.

38 Mr McLaren proposed traffic measures that have been incorporated into the amended plans, including upgrading the pedestrian refuge in Alice Street and the provision of a medium strip in Pearl Street to allow left in/right out access to the main car park to restrict cars using the local road network. However, the secondary driveway has been redesigned but not deleted or relocated as suggested by Mr McLaren, who maintains his concern about its location which centred on:

The interface of the proposed two ramps and public road creates conflicting manoeuvres over a very short distance with extremely limited driver sight distances. This layout creates a safety risk to entering and leaving traffic as well as to pedestrians/cyclists along the frontage public footway.

39 Mr McLaren was particularly concerned about the 1.5m length of the pedestrian refuge, which was not of sufficient size to act as a bicycle refuge for children under 10 who can legally ride on the footpath. He considered the driveway arrangement to be "atypical" and not an ideal arrangement that should be redesigned to remove risk if there is a reasonable alternative, such as deleting the secondary driveway or relocating it. He acknowledged that the changes suggested by Mr Nettle would reduce the risk but were not sufficient to allay his concerns.

40 Mr Nettle stated that there is no specified minimum distance between driveways in AS2890.1. The proposed arrangement is acceptable as people using the driveways will be familiar with them and it is a low speed, low traffic environment. In his opinion, there would be minimal conflict between vehicles using the driveways, the street and pedestrians/cyclists. Nevertheless, he proposed measures to improve the arrangement that included openings in the wall that separates the ramps and on the southern side of the secondary driveway to improve sightlines. As well as the provision of a roller door with remote access and flashing lights to warn vehicles entering the secondary driveway that vehicles are exiting, and visa versa.

Findings

41 I accept Mr McLaren's opinion that the proposed driveway arrangement is "atypical" and not a preferred arrangement. The proposal is for the redevelopment of a large site and there are no constraints, which would preclude the redesign of the driveways to eliminate the potential conflict that would arise from having two driveways in close proximity to each other.

42 The secondary driveway is a single width ramp, which provides access for cars entering and exiting the upper ground level car park for 16 cars. It adjoins the main driveway, which is a two way ramp that provides access to the basement car park for 160 cars. The combined width of the ramps occupies about 11m of the Pearl Street frontage with a pedestrian refuge between the two driveways.

43 Vehicles using the driveways will be familiar and the secondary driveway which provides access to only a small number of parking spaces. However, there is an inherent conflict, as a car entering the secondary driveway would need to wait if a car is exiting. The car would wait in the street potentially blocking access and egress to the basement driveway, which provides parking for a significant number of cars. While this may only occur on an occasional basis, it is less than ideal.

44 Similarly, the need for pedestrians and children on bicycles to cross a significant length of driveway, even with a pedestrian refuge, is not ideal. The Masterplan in DCP 2002 identifies Wallenore Avenue, not Pearl Street, as the preferred location for the car park entry. While the experts agree that Pearl Street is appropriate, the design of the car park should minimise disruption to the street. The length of driveway and car park entry are not desirable elements of the development. Given that the proposal exceeds the maximum FSR in MLEP and results in additional units and cars spaces, it is not unreasonable for the upper ground level car park and the secondary driveway to be deleted.

Exceptions to the floor space ratio standard under cl 4.6 of MLEP

45 Ms Atwal agreed that the amended plans were consistent with the concept plans, which she had supported in principle. However, upon detailed assessment, she concluded that they did not address her concerns in relation to the non compliance of the development with the FSR control in cl 4.4 of MLEP and the number of storeys in C2 of the Masterplan in MDCP. She accepted that the building presents as a five storey building when viewed from Alice Street and Alice Lane (directly in front of the central building frontages) and from the pocket park within the development. However, she disagreed that the redesign of Level 6 was a "mezzanine" for the floor below as its overall size is more consistent with a full floor. She was concerned that the "mezzanine" in the "dog leg" building extended closer to the Alice Lane frontage. The "mezzanine" level contributes to the overall density of the site and will be visible from the public domain. She also raised concerns that the size of the balconies to bedrooms on the "mezzanine" floor are larger than the balconies to the living areas.

46 Ms Atwal did not support the variation under cl 4.6 of MLEP, as compliance with the FSR standard is not unreasonable or unnecessary in the circumstances of the case. In her opinion, the proposal does not meet the objectives of the FSR control or the B4 zone in MLEP because it is not consistent with the desired future character for the area due to its non compliance with the storey controls in the Masterplan.

47 Ms Morrish and Mr Chambers consider that the upper level is a "mezzanine" and consistent with the amendments proposed in the concept plans, agreed to in principle by Ms Atwal. Even if it were to be considered as an extra storey, its massing is acceptable, it is not visible from adjacent streets and Alice Lane and will not result in any adverse impacts, such as overlooking or overshadowing. In their opinion, the upper level is similar in scale, size and massing to a roof form and is well below the maximum height of 20m in MLEP. A commercial building with five storeys and a roof (and complying FSR) would be higher than the proposed mixed use development due to greater floor to ceiling heights and have potentially greater impacts. In their opinion, the extension of the mezzanine closer to Alice Lane had no impacts, as it would not be visible from the lane. The size of the balconies was also acceptable as they are additional to those provided for the living areas and have no adverse impacts, such as overlooking.

48 Mr Chambers has prepared a written request under cl 4.6(3) that seeks to justify the contravention of the FSR development standard. Mr Chambers considered the proposal met the objectives of the FSR standard as the additional density is contained within buildings which are below the 20m height limit in MLEP and within the envelope in the Masterplan of MDCP. A commercial building on the site of greater bulk would comply with the FSR control. The proposal is therefore compatible with the desired future character sought for the area. The proposal also does not result in any unacceptable impacts such as overlooking, overshadowing and traffic generation.

49 In Mr Chambers opinion, compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because:

- the characteristics of the site (i.e. large size, single ownership, surrounded by streets) are such that it can accommodate the additional GFA without unreasonable impacts on adjoining land;

- the proposal meets the objectives of the FSR development standard.....;

- the proposal readily complies with the 20-metre height control in the LEP, especially in those locations most sensitive to potential adverse impacts, such as along Alice Lane;

- the proposal generally complies with the building location and building separation requirements in the Marrickville DCP; and

the proposed additional GFA will not have an unreasonable impact on the perceived bulk or scale of the development, particularly given ready compliance with the height control in the LEP.

50 Further, Mr Chambers considered there are sufficient environmental planning grounds to justify contravening the development standard because:

- The proposal seeks consent for a mixed-use development within an area which is close to employment, education and retail opportunities, and which is well served by public transport. It is imperative that the site be put to as efficient a use as possible, consistent with the objectives and requirements of SEPP 32.

- The proposal is broadly consistent with the objectives and requirements contained within Council's planning instruments, development guidelines and other requirements and will result in no significant adverse environmental impacts.

- The proposal will deliver a well-designed, high-quality, predominantly residential scheme which will provide new residents with excellent amenity without unreasonably diminishing the amenity of existing residents.

- The inherent characteristics of the site, including its size, topography, availability of services, surroundings proximity to facilities and services including public transport, shops, schools and other activities, make the site eminently suitable for implementing urban consolidation to the fullest extent practicable.

- There is an absence of environmental harm associated with the non-compliance with the development standard.

Findings

51 The site is a large allotment, part of which contains a warehouse building of a height and scale that exceeds that of the surrounding residential area. The site is within a B4 zone, whereas the surrounding area is predominantly within a R2 zone under MLEP. Under Schedule 1 of MLEP, residential accommodation, as part of a mixed use development, is permitted on the site despite its general prohibition in the B4 zone. This recognises the redevelopment opportunities of the site for housing "given its proximity to retail and commercial services and public infrastructure and services".

52 Objective O1 of the site specific controls in the Masterplan in Part 9.14.5.1 of MDCP seek "To provide planning provisions that encourage the former industrial property at 30 Alice Street to be redeveloped for mixed residential and employment uses". The Masterplan provides further detail to that in Part 5 of MDCP for a mixed use development with residential accommodation permitted under Schedule 1 of MLEP.

53 The development controls for the site in both MLEP and MDCP permit a form of development, which is significantly larger than that of surrounding development. The key question before the Court is whether the proposal is consistent with the form of development envisaged by the planning controls, in particular the non compliance with the FSR control in cl 4.4 of MLEP.

54 The further amended application proposes an above ground FSR of 2.036:1 (16,894.43sqm), which exceeds the FSR control in MLEP of 1.85:1 (15,351.115sqm). The additional GFA above ground is about 1,543sqm above the control of which about 632sqm is in the "mezzanine" level. Under the definition of GFA in MLEP, car parking in excess of the requirements of MDCP, is not excluded from GFA and therefore the FSR of the proposal is technically greater than 2.036:1. However, the experts have agreed that the parking should be provided in accordance with the rates in the Draft DCP. The proposal complies with these requirements and the experts agree that the departure from the FSR standard resulting from the GFA for car parking in excess of MDCP is acceptable.

55 Clause 4.6 of MLEP permits exceptions to development standards in MLEP, including the FSR control. It is similar to an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) in that it is a precondition, which must be satisfied before the proposed development can be approved.

56 Under cl 4.6(4)(a), consent must not be granted unless the Court is satisfied of two matters. Firstly, that the Applicant's written request has adequately addressed the matters required to be demonstrated in subclause (3). Secondly, that the proposed development will be in the public interest because it is consistent with the objectives of the FSR standard and the objectives for development within the B4 zone.

Objectives of the FSR standard in clause 4.4 of MLEP

57 Clause 4.6(4)(a)(ii) requires satisfaction that the proposal is in the public interest because it is consistent with the objectives of the FSR standard before consent can be granted. The objectives of the FSR standard in cl 4.4 of MLEP are:

(a) to establish the maximum floor space ratio,

(b) to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas,

(c) to minimise adverse environmental impacts on adjoining properties and the public domain.

58 The FSR above the maximum in cl 4.4 will add to the density and bulk of the development. The question is whether the development is of a building density and bulk that is consistent with the desired future character and meets objective (b). The desired future character for the Camdenville Precinct is set out in Part 9.14.2. The matters of relevance to the site are:

5. To preserve the predominantly low to medium density residential character of the precinct.

6. To ensure the provision and location of off-street car parking does not adversely impact the amenity of the precinct.

.........

8. To ensure orderly development on masterplan sites in accordance with the principles of the masterplan vision, including allotment amalgamations, where required, that are not detrimental to achieving the overall masterplan structure and achieve an efficient and high quality built outcome.

9. To facilitate the redevelopment of the underutilised industrial site at 32-60 Alice Street, Newtown for a mix of uses that will contribute to the character and diversity of the precinct.

59 The controls in MLEP and in the Masterplan permit significantly greater density and bulk than the low to medium density residential character of the precinct. However, the predominant character of the precinct is preserved through the controls on surrounding sites, which generally limit height to 9.5m and FSR to 0.85:1.

60 The Masterplan provides guidelines for the development of the site with greater density and bulk than its surrounding context. Through its controls such as number of storeys, setbacks and public open space it provides guidance on how the maximum FSR and height permissible under MLEP can be distributed over the site to achieve a building bulk, which responds to its context.

61 The Masterplan limits the height of development to between five storeys and three storeys along Alice Street and Walenore Avenue and generally between three storey and two storeys along Pearl Street and Alice Lane. The development generally complies with the Masterplan controls and responds to its exiting context while providing greater height and density. The only area in dispute between the parties is whether the "mezzanine" level on the Alice Street building is appropriate.

62 Mezzanine is defined in MLEP as:

Mezzanine means an intermediate floor within rooms

63 The parties held different opinions as to whether the additional level is a "mezzanine". Whether it meets the definition or not, the bulk of the upper level has been minimised through its setbacks from the street frontage, the courtyard and pocket park. The level will not be seen from Alice Street and Alice Lane directly in front of the building, although it will be seen from longer views along Alice Street, and from the park opposite the site. However, it complies with the overall height limit in MLEP and will not present additional bulk to that of a roof structure. Ms Atwel did not identify any material impacts resulting from a building of five storeys plus a "mezzanine" or sixth storey, compared to a building of five storeys plus a roof. Her concerns centred on the numerical non compliance with the storey control.

64 Council referred to PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355, which provides principles for FSR and building envelope, including that FSR should not fill a building envelope established by compliance with controls such as setback, landscaped area and height. However, in this case, the FSR does not fill the building envelope as it is below the height control in MLEP. Further, the Masterplan does not set maximums but requires that the development "must conform" to its envelope. A five storey commercial building would comply with the Masterplan but be of greater bulk than the residential component proposed. Despite the "mezzanine" level, the building bulk is consistent with the envelope and desired future character for the site established by the Masterplan.

65 Exceeding the FSR control will result in a greater density and potentially a greater number of units, a greater number of people and a greater number of cars. However, the experts have not identified any material impact resulting from this increased density beyond those anticipated by the planning controls, other than the secondary driveway.

66 The traffic experts agree that the traffic generation from the additional GFA and car parking will not significantly impact on the surrounding road network and measures have been introduced to minimise impacts on residential amenity. Nevertheless, for the reasons, which I have discussed above, the secondary driveway creates potential conflicts and should be deleted. The planning controls envisage a proposed increase in density and resultant traffic, which will impact on existing residential amenity, this level of impact is reasonable as it is anticipated by the planning controls. However, I do not accept that the additional impact, albeit a minor increase, is reasonable or in the public interest given that part of the desired future character is to ensure the provision and location of off street parking does not adversely impact on the amenity of the precinct.

67 Subject to the deletion of the driveway, I accept Mr Chambers' opinion that the development would meet objective (b) of the FSR standard to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas.

68 Although, not raised by the council, I note that the central courtyard and the Alice Lane buildings within the development are overshadowed by the development. The applicant has provided further solar access diagrams, which illustrate that the removal of the "mezzanine" level would not materially increase the solar access to these areas. The council considers that the development achieves acceptable solar access to the combined area of the courtyard and pocket park and therefore complies with Part 2.7.5.2 of MDCP. Although, I consider the lack of solar access to the courtyard to be a negative feature of the development, it would not warrant refusal of the application given council's submission that it complies with the DCP controls for solar access.

69 As discussed above, MLEP permits greater density and bulk than the low to medium density residential character of the surrounding area, which will result in impacts on the surrounding area and within the development. However, additional impacts are to be expected when a higher density development is inserted into a lower density context. The experts have not identified any adverse impacts beyond those which are anticipated by the planning controls, other than the secondary driveway. The proposal has therefore sought to minimise adverse environmental impacts on adjoining properties and the public domain and therefore, subject to the deletion of the secondary driveway, meets objective (c) of the FSR control.

Objectives of the Zone

70 Clause 4.6(4)(a)(ii) requires satisfaction that the proposal is in the public interest because it is consistent with the objectives of the zone before consent can be granted. The objectives of the B4 zone are:

· To provide a mixture of compatible land uses.

· To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

· To support the renewal of specific areas by providing for a broad range of services and employment uses in development which display good design.

· To promote commercial uses by limiting housing.

· To enable a purpose built dwelling house to be used in certain circumstances as a dwelling house.

· To constrain parking and restrict car use.

71 These objectives largely relate to commercial development and the uses which are permissible within the B4 zone. "Residential Accommodation", other than certain types, is prohibited in this zone, and is only permissible on the site through the application of Schedule 1. It is therefore difficult to be satisfied that the development is consistent with the objective of the zone to promote commercial uses by limiting housing. The increased density of the proposal will also result in increased parking, however, the parking provided complies with the Draft DCP and therefore meets the objective to constrain parking and restrict car use. I am satisfied that the proposal meets the relevant objectives of the zone.

Applicant's written request

72 Clause 4.6(4)(a)(i) of MLEP requires satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3).

73 Clause 4.6(3) provides:

Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

74 Clause 4.6(3)(a) uses the same language as SEPP 1. Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 deals with the requirements to uphold an objection under SEPP 1. At [42] to [43], His Honour discusses ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states:

42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish 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...

43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).

75 The principles in Wehbe are relevant to establish whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as required by cl 4.6(3)(a), namely whether, despite the non compliance, the proposal meets the objectives of the standard. Given that I have found that the development meets the objectives of the FSR standard, it therefore follows that I can be satisfied, as required by cl 4.6(4)(a)(i) of MLEP, that the Applicant's written request has adequately demonstrated the matters in cl 4.6(3)(a).

76 Clause 4.6(3)(b) requires the applicant's written request to demonstrate that there are "sufficient environmental planning grounds to justify contravening the development standard".

77 The term "environmental planning grounds" is broad and encompasses wide environmental planning grounds beyond the absence of environmental harm or impacts. It is likely to be informed by the objectives of cl 4.6 which provide:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

78 The objectives seek to provide flexibility in applying development standards to achieve better outcomes for and from developments. To determine whether a better outcome is achieved in allowing flexibility, is likely to involve a consideration of similar matters to those in the aims and objects set out in cl 3 of SEPP 1, namely to provide:

flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

79 The objects in s 5(a)(i) and (ii) of the EPA Act are:

(1) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(2) the promotion and coordination of the orderly and economic use of developed land."

80 Mr Chambers' written request on behalf of the applicant has provided environmental planning grounds to justify contravention of the FSR. These include the characteristics of the site close to transport, employment and services and its size and suitability for urban consolidation, the quality and amenity of the design for occupants and the surrounding area, the absence of environmental harm and the consistency of the development with the planning controls. In particular, the site specific Masterplan provides guidance on the redevelopment of the site. As discussed above, the additional FSR above the standard in cl 4.4 can be accommodated within the parameters and envelope defined by the Masterplan. Compliance with the standard would hinder the attainment of the Masterplan and the objects of the Act. Consequently, the proposal provides a better outcome for and from the development. It therefore follows that I can be satisfied, as required by cl 4.6(4)(a)(i) of MLEP, that the Applicant's written request has adequately demonstrated the matters in cl 4.6(3)(b).

Concurrence

81 Clause 4.6((4)(b) of MLEP requires that development consent must not be granted unless the concurrence of the Director General has been obtained. Clause 4.6(5) provides:

In deciding whether to grant concurrence, the Director-General must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Director-General before granting concurrence.

82 This is similar to the requirement in SEPP 1. The Court has the power to assume the Director General's concurrence by reason of s 39(6) of the Land and Environment Court Act 1979 (LEC Act). However, consistent with the decision in Wehbe, the matters in cl 4.6(5) "are still relevant when the Court is considering exercising its power. The parties made no submissions and there is nothing in the evidence that would indicate that these matters in cl 4.6(5) have not been adequately addressed.

Conditions

83 The only condition in dispute between the parties is the timing for payment of the s 94 contribution. The condition requires the payment of the contribution "before the issue of a construction certificate". The Applicant is seeking an amendment to the condition to require the payment "before the issue of a construction certificate for any works above the ground floor slabs".

84 The applicant submits that s 5.2 of the Contributions Plan allows the timing of payment to be negotiated and that the payment of the contribution before the construction certificate for the above ground works "will not prejudice the timing or the manner of the provision of the amenities/services for which the contribution is required" and meets the criteria in s 5.3 for deferred and periodic payment of contributions. The applicant also submits that in the circumstances, there is no requirement for a bank guarantee to be provided to the Council.

85 The council submits that the Applicant has not established that payment of the section 94 contribution in accordance with s 5.3 of the Contributions Plan is unreasonable or unnecessary. If a deferral were to be granted, s 5.3 would require the deferral of the contribution to be addressed by way of a bank guarantee:

Findings

86 Section 5.2 of the Contributions Plan provides:

Unless otherwise negotiated (refer to Section 5.3), payment of Section 94 or 94A contributions is to be made at the following stages:

....

For building work requiring a construction certificate, before the issue of the construction certificate.

....

87 Section 5.3 of the Contributions Plan provides:

Council may decide to accept the deferred or periodic payment of a monetary contribution if the applicant satisfies Council that compliance with the provisions of this Schedule as to when contributions payable is unreasonable or unnecessary in the circumstances of the case and that non compliance will not prejudice the timing or the manner of the provision of the amenities/services for which the contribution is required

88 The applicant has provided no evidence or detailed submissions as to why compliance with s 5.2 is unreasonable or unnecessary and that non compliance will not prejudice the timing or the manner of provision of services in the s94 Plan. I therefore cannot be satisfied that the requirements of s 5.3 have been met. The condition therefore is to remain.

Other matters

89 Although not raised by the council, there is no disabled access from the Pocket Park to Alice Lane and only steps are provided. This is not a satisfactory solution given that the Masterplan indicates it as a "though site line". The Pocket Park provides a public linkage to and from the site to the surrounding area and Matt Hogan Reserve. While Alice Lane is not a destination, the site, with its proposed retail/commercial facilities is. It is not acceptable that people coming from the south who are disabled or people with prams must access the site via Wallenore/Pearl Streets and Alice Street rather than more directly via Alice Lane. The site is large and there are no reasonable constraints on why a lift or ramp cannot be provided to facilitate disabled access.

Conclusion

90 For the reasons outlined above, I am satisfied that consent can be granted for the development application, subject to the deletion of the secondary driveway and the provision of a lift/ramp to provide disabled access to the pocket park from Alice Lane.

91 I note that removal of the secondary driveway will require removal of the upper ground level parking area and redesign of this area to achieve access to the Alice Street Terraces from the basement. It will also require changes to the unit mix and or deletion of units to ensure that the final number of car spaces complies with the requirements of the Draft DCP and is accommodated within the basement car park.

92 Clarification in the plans is also required to show the proposed materials and RLs where levels change and maximum building heights. The elevations, including setbacks, should be shown with sufficient detail to ensure that there is no ambiguity in the issue of a construction certificate.

93 The applicant, with council agreement, has requested the opportunity to further amend the proposal, if required by the Court. It is therefore appropriate that this occur.

94 While the changes could be imposed as conditions, it is preferable that they be incorporated into a final set of plans and conditions to ensure consistency and certainty in the development consent.

Directions

95 The applicant is to file and serve plans, which incorporate the changes required by this judgement by 10 May 2013. The parties are to file agreed conditions by 17 May 2013. Final Orders will be issued in Chambers

Annelise Tuor

Commissioner of the Court

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Decision last updated: 26 April 2013