Botany Development Pty Ltd v Council of the City of Botany Bay (No. 3) [2015] NSWLEC 1282 (30 July 2015)

New South Wales Land and Environment Court

[Index] [Search] [Download] [Help]

---

Botany Development Pty Ltd v Council of the City of Botany Bay (No. 3) [2015] NSWLEC 1282 (30 July 2015)

Last Updated: 30 July 2015

Land and Environment Court New South Wales

Case Name:	Botany Development Pty Ltd v Council of the City of Botany Bay (No. 3)
Medium Neutral Citation:	[2015] NSWLEC 1282
Hearing Date(s):	11 June 2015
Date of Orders:	30 July 2015
Decision Date:	30 July 2015
Jurisdiction:	Class 1
Before:	Brown ASC
Decision:	1. The appeal is upheld. 2. Development Application No 2012/233/1 for the demolition of all improvements and the construction of a 3-6 storey residential development, containing 154 units, basement car parking, landscaping and ancillary works at 72-86 Bay Street, Botany is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit G.
Catchwords:	DEVELOPMENT APPLICTION: demolition of all improvements and the construction of a 3-6 storey residential development, basement car parking, landscaping and ancillary works - remitted hearing to consider application in accordance with the law
Legislation Cited:	Botany Bay Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development – Amendment 3 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development
Cases Cited:	Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55 Botany Development Pty Ltd v Council of the City of Botany Bay [2014] NSWLEC 1073 Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142.
Texts Cited:	Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
Category:	Principal judgment
Parties:	Botany Development Pty Ltd (Applicant) Council of the City of Botany Bay (Respondent)
Representation:	Mr I Hemmings SC (Applicant) Mr T Hale SC (Respondent) Hunt & Hunt (Applicant) Huston Dearn O’Connor (Respondent)
File Number(s):	10360 of 2013
Publication Restriction:	No

JUDGMENT

1. COMMISSIONER: This is a remitted hearing in relation to the upholding of an appeal under s 56A of the Land and Environment Court Act 1979 (the Court Act) against the approval of Development Application No 2012/233/1 by the Court. The development application sought the demolition of all improvements and the construction of a 3-6 storey residential development, basement car parking, landscaping and ancillary works at 72-86 Bay Street, Botany (Botany Development Pty Ltd v Council of the City of Botany Bay [2014] NSWLEC 1073).
2. On 31 January 2014 the following directions were given in relation to the consideration of the merits of Development Application No 2012/233/1:

Amended plans and conditions
The judgment identifies a number of matters that require further consideration by the applicant by way of amended plans and conditions. These are:
• the deletion of units B3.08 and B3.09 on Level 3 and B4.08 and B4.09 on Level 4,
• the provision of parking in accordance with DCP 2013, and
• the change from light tubes to openings to allow for cross ventilation.
On the filing of agreed amended plans and conditions that reflect the findings in the judgment, orders will be made in chambers that state:
1. The appeal is upheld.
2. Development Application No 2012/233/1 for the demolition of all improvements and the construction of a 3-6 storey residential development, containing 158 units, basement car parking, landscaping and ancillary works at 72-86 Bay Street, Botany is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibit G.

3. Final orders were made on 9 April 2014 following the provision of the amended plans (the approved plans) and conditions. The approved plans provided for a total of 154 units (rather than 158 units) plus other changes identified in the judgment on 31 January 2014.
4. On 9 April 2015, after considering an appeal under s 56A of the Court Act, Sheahan J made the following orders in Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55

(1) The Council’s s 56A appeal is upheld.
(2) The Class 1 appeal is remitted for further hearing before Brown C, in order for him to determine it in light of these reasons, and the parties are to approach the Registrar within 7 days for a hearing date.
(3) Unless the Respondent by Notice of Motion filed within 14 days seeks a different order, the Respondent is to pay the Appellant’s costs of this appeal on a party-party basis, as agreed or assessed.
(4)The Appeal Book is returned to the Appellant.

5. The reasons for the decision of Sheahan J are:

(c) What are the minimums referred to in cl 30A(1)(b)?
88.Specifically, the question is whether, on its proper construction, cl 30A(1)(b) refers to the minimum sizes contained in the table, or those in the Rules of Thumb.
89. In Project Blue Sky Inc v Australian Broadcasting Association [1998] HCA 28; 194 CLR 355, the plurality (McHugh, Gummow, Kirby and Hayne JJ) said, at [78]:
The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction [56] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
90. In Agricultural Equity Investments Pty Limited v The Hon Chris Hatcher MP, Minister for Resources and Energy, Special Minister [2015] NSWLEC 23, at [34], Pepper J said:
As has been confirmed by a plethora of recent High Court decisions, the task of statutory interpretation begins and ends with a consideration of the text of the statute to be construed. The language must be considered, however, in its context. This includes ascertaining the objective intention, or purpose, of Parliament in enacting the legislation. The context may also include an examination of the legislative history of the statute and any relevant extrinsic materials, but these aids cannot displace the meaning of the text.
91. Clause 30A(1)(b) of the SEPP says:
(1) A consent authority must not refuse consent to a development application for the carrying out of residential flat development on any of the following grounds:
(b) apartment area: if the proposed area for each apartment is equal to, or greater than, the recommended internal area and external area for the relevant apartment type set out in Part 3 of the [RFD Code].
92. The Appellant submits that the wording of cl 30A(1)(b) dictates that the relevant minimums are those referred to in the table.
93. I agree with this submission for the following reasons.
94. Clause 30A(1)(b) refers to the recommended internal and external areas for the relevant apartment type set out in Part 3. Internal and external areas are set out only in the table. The Rules of Thumb do not delineate between internal and external areas.
95. Words must have import in their context, so cl 30A(1)(b) must be referring to the table, otherwise the reference to “internal and external areas” would make no sense.
96. Similarly, the term “relevant apartment type” clearly refers to the nine apartment types identified in the table (Tp8, LL20 – 26, and subs par 24).
97. The Respondent attempted to counter this argument by stating that the required minimums regarding external areas are dealt with on pages 77 – 78 of the Code (Tp25, LL29 – 35, and see above at [47]).
98. The “Rules of Thumb” on those pages provide that balconies must be provided for all apartments with a minimum depth of 2m, and that developments which depart from these minimums must demonstrate that negative impacts cannot be satisfactorily mitigated with design solutions. Thus, cl 30A(1)(b) is referring to the Rules of Thumb for both internal areas (p69), and for external areas (p72). In other words, when the sub-clause talks about recommended external area, “you need to look somewhere else to find the external minimums” (Tp27, LL18 – 20).
99. However, those “Rules of Thumb” to which counsel of the Respondent referred, provide only for a minimum “depth” for balconies, and say nothing in relation to minimum external area (see above at [47]). Therefore, this submission does not overcome the express wording of cl 30A(1)(b).
100. The crux of the Respondent’s submission was that the introductory information (on p4 of the Code) expressly provides that the Rules of Thumb should be read as providing the “recommended minimums” (see [38] above).
101. Whilst the document may have been drafted with the intention that the “recommended minimums” were those in the Rules of Thumb, the language of the provision to be interpreted must take priority. Clause 30A(1)(b) refers to internal and external areas; hence, the only possible construction available for those words is that they were referring to the table, and not the Rules of Thumb.
102. Similarly, the fact that the relevant “Rules of Thumb” itself refers to providing recommended minimums (Tp23, LL34 – 43) does not overcome the express wording of cl 30A(1)(b).
103. It was also argued that the construction favoured by the Respondent would mean that the “previous two pages” of the RFD Code, which provide information about appropriate design “would be of little or no relevance”, and would be contrary to the aims of the SEPP, namely, to provide quality design outcomes for residential flat buildings across the board. This is because (Tp9, LL20 – 31)
...it would mean there would be no basis for refusing a development application for apartments if the apartment sizes were the very bare minimum of affordable housing. In other words, affordable housing standards were to be applied right across the board
104. I agree with that submission.
105. The Respondent referred to the evidence of Ms Morrish, who was on the drafting committee for the RFD Code (see [51] above), and the Council said in response (Tp15, LL16 – 26):
In my learned friend’s submissions, he makes reference to what Ms Morrish thought the code meant. That’s not to the point. It’s to be determined objectively. The intention of the decision maker and the clause is to be determined by reference to the words, not what some individual might think, even if that individual might have played some part. Similarly, nor is it relevant that at one earlier time, as Mr Hemmings refers to, some member of Council had adopted the erroneous construction for which the respondent contends
106. I also agree with this submission by the Council.
107. The intention of Parliament is to be construed objectively, with the precise wording of the statute at the forefront.
108. Although Ms Morrish played a role in the drafting of the RFD Code, her subjective view is, with all respect, irrelevant for the purpose of the Court’s construing SEPP 65. Similarly, the subjective views of relevant Council officers assessing the proposal, which may be influential in settling the assessment practices adopted by Council, cannot influence the correct construction of the SEPP.
109. For the above reasons, I conclude that the “recommended internal and external areas” referred to in cl 30A(1)(b) of the SEPP, are those contained in the table on p69 of the RFD Code.

Directions prior to the remitted hearing

6. On 14 May 2015, the following directions were made with the parties present in relation to the remitted hearing:

1. The Applicant is to produce, in tabular form, the following:
• the size of each unit in the plans approved by the Court,
• the relevant size requirements for each unit approved by the Court based on The City of Botany Bay Development Control Plan,
• the relevant size requirements for each unit approved by the Court in the Table in the Residential Flat Design Code (RFDC),
• the relevant size requirements for each unit approved by the Court in the "Rules of Thumb" in the RFDC, and
• the relevant size requirements in any draft document associated the potential replacement of the RFDC.
2. The Respondent is to advise whether it accepts the areas of the units provided by the Applicant in 1. If there is a disagreement, the Respondent is to indicate the reason for any disagreement.
.
3. The Applicant's expert preparing the table and the Respondent's expert responding to the table are to jointly prepare a short report, indicating the overall suitability or unsuitability of the Court approved plans in relation to the unit sizes based on the planning requirements in 1, given that all previous evidence addressed a different set of plans.
4. The table, comments on the table and the comments on the overall suitability or unsuitability of the plans approved by the Court are to be filed by 4 June 2015, being 7 days prior to hearing on 11 June 2015.

The remitted hearing

The statutory framework

7. The central issue relates to unit size although the remitted hearing is required to consider all relevant matters, including those matters set out on s 79C(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
8. Unit sizes are addressed in Botany Bay Development Control Plan 2013 (DCP 2013). DCP 2013 was adopted by council on 9 December 2014 and came into effect on 16 December 2014. Botany Bay Local Environmental Plan 2012 provides no specific requirements for unit size.
9. Clause 4B.5.1 for Dwelling Mix, Room Size and Layout of DCP 2013 states:

Objectives

O1 To ensure that dwellings are efficient, have high standards of amenity for residents and satisfy environmental performance criteria, such as ventilation and access to natural light;

O2 To be flexible to suit the occupant’s requirements;

O3 To ensure residential development contains a mix of residential types (based on the number of bedrooms) to increase the potential for a balanced population;

O4 To ensure adequate provision, design and location of internal facilities; and

O5 To provide adequate amenity for building occupants in terms of access to sunlight and natural ventilation.

Controls

C1 Multi dwelling developments are to have the following minimum internal areas:

• Studio: 60m²

• 1 bedroom: 75m²

• 2 bedrooms: 100m²

• 3 bedrooms: 130m²

• 4 bedrooms: 160m²

Note: Dwelling size means the area inside the enclosing walls of a dwelling but excludes wall thickness, vents, ducts, staircases and lift wells.

C2 Multi dwelling developments having ten (10) or more dwellings shall provide a mix of dwelling sizes and layouts.

C3 The combined total number of one-bedroom and studio dwellings shall not exceed 25% of the total number of dwellings within any single site area in residential zones.

C4 Laundry, food preparation and sanitary facilities are to be provided in a convenient location within a dwelling (or a building containing a number of dwellings) and be built appropriately according to the function and use of the dwelling.

C5 Bathrooms and bedrooms are to be separated from living and kitchen areas where possible.

10. Section 79C(1) of the EPA Act requires in “determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application”, relevantly “any development control plan” (s 79C(1)(a)(iii)).
11. The role of a development control plan is set out in some detail by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 (at [83] to [92]) and includes a review of recent judgements on this issue. Relevantly, ( at [87]), His Honour states:

87. A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a larger area or confined to an individual site. The provision of a development control plan must be consistent with the provisions of any relevant local environmental planning. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental planning.

12. His Honour further states that the principles relevant to consideration of development control plans. These include the matters raised in the preceding paragraph and a number of specific matters that determine weight to given to the development control plan. These are the level of consultation with interested persons, including the effected community, any inconsistency in which the development control plan has been applied by a council, the consistency with other policy outcomes adopted at a State, regional or local level and the consistency of decision-making.
13. The weight to be given to a development control plan is addressed in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373. Spigelman CJ, (at [75]), raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a development control plan are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the development control plan directly pertinent to the application is entitled to significant weight in the decisionmaking process but it is not in itself determinative.
14. State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applied to the proposed development at the time of hearing. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the Residential Flat Design Code (RFDC) (cl 30(2)(c)).
15. The relevant design quality principle in Part 2 is:

15 Principle 7: Amenity
Good design provides amenity through the physical, spatial and environmental quality of a development.
Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility.

16. Clause 6 states:

6 Relationship with other environmental planning instruments
(1) In the event of an inconsistency between this Policy and another environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency.

17. The RFDC provides the following objectives for Apartment Layout (at p 67):

Objectives
• To ensure the spatial arrangement of apartments is functional and well organised
• To ensure that apartment layouts provide high standards of residential amenity
• To maximise the environmental performance of apartments
• To accommodate a variety of household activities and occupants' needs

18. The RFDC provides the following requirements for unit size (the Table)(at p 69):

Apartment Type	Area	ITl2
03.01 Studio	Internal Area	38 5rri2
	External Area	6m2
03.02 One bedroom,	Internal Area	50m2
cross through	External Area	8m2
03.03 One bedroom	Internal Area	62m2
masionette/loft	External Area	9 4m2
03.04 One bedroom	Internal Area	63 4m2
single aspect	External Area	10m2
03.05 Two bedroom	Internal Area	80m2
corner	External Area	11m2
03.06 Two bedroom	Internal Area	89m2
cross through	External Area	21 m2
03.07 Two bedroom	Internal Area	90m2
cross-over	External Area	16m2
03.08 Two bedroom	Internal Area	121m2
corner with study	External Area	33m2
03.09 Three bedroom	Internal Area	124m2
	External Area	24m2

19. The Rules of Thumb (at p 69) state:

• Single-aspect apartments should be limited in depth to 8 metres from a window
• The back of a kitchen should be no more than 8 metres from a window
• The width of cross-over or cross-through apartments over 15 metres deep should be 4 metres or greater to avoid deep narrow apartment layouts
• Buildings not meeting the minimum standards listed above, must demonstrate how satisfactory daylighting and natural ventilation can be achieved, particularly in relation to habitable rooms (see Daylight Access and Natural Ventilation)
• If council chooses to standardise apartment sizes, a range of sizes that do not exclude affordable housing should be used As a guide, the Affordable Housing Service suggest the following minimum apartment sizes, which can contribute to housing affordability (apartment size is only one factor influencing affordability)
1 bedroom apartment 50m2
2 bedroom apartment 70m2
3 bedroom apartment 95m2

20. The draft Apartment Design Guide (draft APG) had been advertised although no date for its formal adoption by the Department of Planning & Environment was known at the time of the hearing. The draft ADG in its adopted form, is to supersede the RFDC. The draft ADG (at p 107) provides the following requirements for unit size:

Apartment type Minimum internal area
Studio	35m2
1 bedroom	50m2
2 bedroom	70m2
3 bedroom	95m2

21. The hearing concluded on 11 June 2015 and the draft ADG was ratified on 19 June 2015 by the Department of Planning & Environment and became the Apartment Design Guide (the ADG). The ADG became effective on 17 July 2015. Changes were also made to SEPP 65 at the same time. The changes to SEPP 65 are identified in State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development – Amendment 3 (SEPP 65 - Amend 3).
22. SEPP 65 - Amend 3 now applies to the application however as the application was made but had not been determined at the coming into effect of SEPP 65 - Amend 3, cl 31(2) applies and provides transitional provisions for the application. These state:

(2) If a development application or an application for the modification of a development consent has been made before the notification on the NSW legislation website of the making of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development (Amendment No 3) and the application has not been finally determined before the commencement of that amendment, the application must be determined as if the amendment had not commenced.

23. Relevantly, cl 6A of SEPP 65 - Amend 3 states:

6A Development control plans cannot be inconsistent with Apartment Design Guide
(1) This clause applies in respect of the objectives, design criteria and design guidance set out in Parts 3 and 4 of the Apartment Design Guide for the following:
(a) visual privacy,
(b) solar and daylight access,
(c) common circulation and spaces,
(d) apartment size and layout,
(e) ceiling heights,
(f) private open space and balconies,
(g) natural ventilation,
(h) storage.
(2) If a development control plan contains provisions that specify requirements, standards or controls in relation to a matter to which this clause applies, those provisions are of no effect.
(3) This clause applies regardless of when the development control plan was made.

24. The ADG (at p 87) provide the following requirements for unit size:

Apartment type Minimum internal area
Studio	35m2
1 bedroom	50m2
2 bedroom	70m2
3 bedroom	90m2

25. These are generally consistent with the minimum internal areas in the draft ADG with the exception of a 3 bedroom apartment where the minimum size was reduced from 95 sq m to 90 sq m.

The evidence

26. Expert evidence was provided from town planners Mr Robert Chambers for the applicant and Ms Phoebe Mikhiel for the council. They produced a joint report based on the directions to the parties on 14 May 2015. Mr Chambers and Ms Mikhiel agreed that when the unit sizes in the approved plans are considered against:

• DCP 2013; no units complied,

• the Rules of Thumb in the RFDC; all units complied,

• the draft ADG; all units complied.

27. Mr Chambers and Ms Mikhiel disagree on the number of units that comply when considered against the Table in the RFDC.
28. Mr Chambers states that:

• the approved plans provide for suitable units which satisfy the objectives for apartment layouts in the Table to the RFDC;

• the approved plans still provide for suitable units notwithstanding the non-compliance of some of the units with the unit sizes set out in the Table to the RFDC;

non-compliance with the unit sizes set out in the Table to the RFDC is not a matter indicating unsuitability, as units which comply with the Rule-of-Thumb for their respective unit sizes in the RFDC may be (and in this case are) also suitable;

the approved plans provide for suitable units which, notwithstanding that they do not satisfy the minimum unit size requirements in DCP 2003, nevertheless still satisfy the objectives for "dwelling mix, room size and layout" in cl 4C.5.1 of DCP 2013.

29. Given the above, the differences with Ms Mikhiel on the number of apartments which do or do not fall into particular categories and thus do or do not comply with the respective unit size requirements in the Table to the RFDC, Mr Chambers states that is of no real consequence in terms of the suitability of the units on the approved plans. No adverse amenity or social issues for either future residents of the development or for neighbours arise as a consequence of the sizes of the units on the approved plans. Mr Chambers considers that the apartments on the approved plans are well designed and capable of providing future residents with a high level of amenity, therefore he consider them to be suitable when assessed against the relevant planning requirements.
30. Ms Mikhiel states that while the development satisfies the Rule of Thumb numerical sizes, single-aspect apartments should be no more than 8 m from a window and the back of a kitchen should be no more than 8 m from a window. Also, the Rule of Thumb also provides for minimum amenity requires that the units should have. For example apartments C1.07, C1.08, A1.03, D1.07 are approximately 10m deep and do not satisfy the above requirements.
31. Ms Mikhiel notes that the objectives of Apartment Layout on p 67 of the RFDC state that apartments are to provide a high standard of residential amenity and maximise the environmental performance of apartments. A total of 92 of the approved apartments do not comply with the Table to the RFDC in terms of internal and external space. In addition to this, the RDFC reiterates the need for high levels of amenity and no further information has been provided to support that the units will have adequate ventilation and solar amenity. The objectives of Dwelling Mix, Room Size and Layout of DCP 2013 state that dwellings are to be efficient, have a high standard of amenity for residents and satisfy environmental performance criteria, such as ventilation and access to natural light. In addition to this, it is necessary to provide a mix of residential types.
32. Ms Mikheil notes that Annexure E to the joint report highlights the difference in the classification of the units. There are several discrepancies as several units can be defined as different types. For example A1.03 and the identical units above, have a study and Mr Chambers classifies this a 2 bed unit while Ms Mikhiel’s position is that this is more appropriately classified as a 3 bed unit as the area of the study can also be easily be made into a bedroom. In unit A1.02, Mr Chambers classifies the unit as a one bed cross through as a window is to be located above the door, however this not shown on the plans. Ms Mikhiel states that is more appropriately classified as a one bed single aspect unit and does not fit the model provided in the RFDC which clearly shows a large windows at either end of the apartment. In general terms, Ms Mikhiel’s response takes into consideration the potential for these units to be altered or improved, rather than as designated on the approved plans.
33. It is Ms Mikhiel’s opinion that the approved plans do not provide adequate amenity to the development in terms of a providing a variety of housing types and styles. No further information has been submitted to support adequate access to solar amenity and ventilation. The approved plans focus on maximum yield which has compromised the internal and external areas of some of the apartments.

Do the approved plans provide acceptable unit areas?

34. It was agreed that the approved plans do not satisfy the numerical requirements in cl 4B.5.1 for Dwelling Mix, Room Size and Layout of DCP 2013. That however is not the end of the enquiry even though DCP 2013 is a mandatory consideration under s 79C(1)(a)(iii) of the EPA Act.
35. Clause 6(1) of SEPP 65 provides that “In the event of an inconsistency between this Policy and another environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency”. DCP 2013 is not an environmental planning instrument for the purposes of cl 6(1) so effectively cl 4B.5.1 of DCP 2013 and the Table in the RFDC apply although I do not accept that the DCP 2012 provisions should be preferred over the requirements in the Table to the RFDC for a number of reasons. First, and while Stockland identifies a development control plan as a “a detailed planning document which reflects a council's expectation for parts of its area”, the judgment also states that in determine weight to given to the development control plan a relevant factor is the consistency with other policy outcomes adopted at a State, regional or local level and the consistency of decision-making.
36. Second, and as stated in Zhang, a development control plan is a fundamental element in, or a focal point to, the decision-making process but it is not in itself determinative.
37. Third, s 79C(3A) provides flexibility in relation to applying development control plans where it states:

(3A)Development control plansIf a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a)
(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)

38. Ms Mikhiel and Mr Chambers disagreed on the compliance with the requirements of the Table in the RFDC. A table to the joint report (Annexure E) sets out the areas of difference in the categorisation by Mr Chambers and Ms Mikhiel of the units in the approved plans. Ms Mikhiel calculates that only 62 units of the 154 units on the approved plans comply with the Table in the RFDC. Mr Chambers calculates that 133 units of the 154 units on the approved plans comply with the Table in the RFDC. The major differences being firstly, the classification of some units and secondly, the number of units that do not fall into the number of specific classifications in the Table to the RFDC.
39. On the first matter, Ms Mikhiel maintains that there is the potential for a number of units to be altered or improved, rather than used as that designated on the approved plans. These units involve an area typically used as a study or media alcove. Ms Mikhiel maintains that these areas should be regarded as a further bedroom thereby requiring a greater area under the Table to the RFDC. Mr Chambers position is that they are not bedrooms and should not be regarded as such.
40. The number of units that have an area suitable for a study or media alcove on the approved plans is 27. I have little trouble in accepting the evidence of Mr Chambers as the areas in question do not have a door, have an opening wider than a door thereby limiting their retro fitting as bedroom, have no window and are small. For example, unit B1.07 scales from the approved plans at 2.1 m x 1.7 m.
41. On the second matter, I agree with the approach of Mr Chambers. It is problematic to try and classify a unit that does not readily fit into one of the classifications in the Table to the RFDC. This has the potential to distort the intent of the Table. For example, unit C1.01 is 1 bed unit with an internal area of 59 sq m. Ms Mikhiel classifies the unit as a 1 bedroom single aspect unit requiring an area of 63.4 sq m whereas Mr Chambers classifies the unit as a 1 bedroom corner unit which is not reflected in the Table to the RFDC. He excludes the unit (and similar units) from any calculations with the Table to the RFDC as they do not fit comfortably into a specific category. Using the above example, I note that the range for the three classifications for internal areas for 1 bedroom units range from 50 sq m to 63.4 sq m compared to an provided area of 59 sq m.
42. I do not consider it necessary to address each unit addressed by Ms Mikhiel as they are not significantly different to the above example with some exceptions which are addressed in the following paragraphs. Mr Chambers, in his assessment against the Table in the RFDC, describes them as “N/A” which is not unreasonable given the limitations on classification in the Table to the RFDC. I do not accept that it is appropriate to force a unit into a classification that does not properly address the characteristics of that unit and then conclude that it does not satisfy the minimum floor area requirements for that classification of that unit. As set out later, the area of a unit is not the only consideration in determining its suitability.
43. Mr Chambers helpfully provided a table identifying the differences in internal and external areas of the development and the Table to the RFDC. The largest differences occur with the eight 3 bedroom units where the maximum difference is between 25.3 sq m and 28.1 sq m. The Table to the RFDC seeks an internal area of 124 sq m and the approved plans provide for areas between 95.9 sq m and 98.7 sq m. With an understanding of the layout of these units, I agree with the evidence of Mr Chambers where he describes the units as “well designed and capable of providing future residents with a high level of amenity”. The units have generally square or rectangular proportions with little wasted space through long corridors that maximise the available space. Similarly, I accept that the differences between the approved plan and the Table to the RFDC for the eight 1 bedroom single aspect units are also acceptable. The identified differences in area are small and have no effect on the amenity of the units.
44. I also accept that the differences between the approved plans and the Table to the RFDC for external areas are small and will not affect their utility.
45. I do not accept that the internal and external size of the units is a valid reason to refuse the application as they satisfactorily address the objectives of cl 4B.5.1 for Dwelling Mix, Room Size and Layout of DCP 2013 and the relevant objectives in the RFDC.
46. It is also necessary to respond to concerns expressed by Ms Mikhiel on solar access, natural lighting and ventilation. These matters were addressed in the principal judgment and as no additional evidence was provided at the remitted hearing, I will repeat my comments:

Solar access/natural ventilation/natural lighting
Evidence was provided by Mr Alastair Colstock, for the council, and Mr Steve King, for the applicant. Like other experts, they address the requirements in DCP 35 although their evidence focuses on the RFDC.
Solar access
Clause 4C.5.8 Solar Access of DCP 2013 relevantly states:
Objectives
O1 To provide all habitable rooms with access to daylight;
O2 To provide all habitable rooms with access to sunlight where possible;
O3 To minimize the need for artificial light sources;
O4 To provide functional balconies;
Controls
C1 Residential flat buildings shall comply with the principles and provisions of State Environmental Planning Policy No 65 (SEPP 65) and the Residential Flat Design Code in relation to solar access.
C2 Development must demonstrate that living rooms and private open spaces for at least 70% of apartments in a development should receive a minimum of three hours direct sunlight between
9am and 3pm in mid winter.
The Rules of Thumb for Daylight Access in the RFDC (p 85) state:
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 am and 3 pm in mid winter 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 from the minimum standards must demonstrate how site constraints and orientation prohibit the achievement of these standards and how energy efficiency is addressed (see Orientation and Energy Efficiency).
See Apartment Layout for additional rules of thumb
Mr King analysed each of the proposed units in terms of the Rules of Thumb and concluded that the development satisfies the 70% requirement based on:

Units achieve 3 hours or more sunlight 9-3	82	51.9%
Additional units which achieve 2 hours or more sunlight 9-3 June 21	19	12.0%
Additional units that achieve minimum 2 hours direct sun 8-4 June 21	10	6.3%
Total number of units	158
Units deemed to satisfy the RFDC control	111	70.3%

Mr Colstock disagrees with Mr Kings assessment. He states that to achieve the 70% requirement, it has been necessary to extend the assessment hours to 8 am to 4 pm rather than the hours specified in the RFDC of 9 am to 3 pm. Mr Colstock maintains that the use of the extended hours is flawed as the low angle of the sun at these times will produce direct glare and consequently can be a problem rather than providing useful light. Also, Mr Colstock maintains that the use of the 2-hour standard is not appropriate in the circumstances. In his opinion, compliance should be measured against a 3-hour period, as the site is not within a “dense urban area(s)”.
On the issue of solar access, I agree with the conclusions of Mr King. As a starting point, I accept that the site is located in a “dense urban area(s)”. While the RFDC does not define this term, I am satisfied that an area that contemplates a maximum height of 22m and an FSR of 1.65:1 can be regarded as a “dense urban area(s)”. On this basis, the appropriate requirement in the Rules of Thumb is at least 70% of apartments should receive a minimum of 2 hours direct sunlight between 9 am and 3 pm in mid winter.
The proposal provides 64% and while this does not satisfy the 70% requirement, and while it is not optimal, it is acceptable in the circumstances. The site has a its long axis in an east–west direction and consequently a long south facing boundary to Bay Street. The site also has a 6 storey building near its northern boundary (9-19 Myrtle Street) that could compromise solar access to the northern aspect of any design however, In this case, I accept that the design is well considered through the location of the building away from the northern boundary so that solar access is maximised to its northern elevation.
I do not accept that the RFDC should be read as a development standard or a requirement that must be complied with. In the second dot point, the Rules of Thumb contemplate variations to the requirements. Also, the definition in the RFDC for of Thumb supports the application of a flexible approach where it states:
rules of thumb recommend minimum standards as a guide for local decision making. Minimum standards may vary depending on local context issues and/or if development applicants are able to demonstrate that they have addressed the better design practice guidelines and achieved the stated objectives.
In this case, I am satisfied that the minimum 70% standard can be varied given the relatively small variation (10 units out of 158 units excluding any benefit from the deletion of 4 units), the sunlight available between 8 am and 4 pm, the orientation of the site and the design that seeks to maximise solar access to the northern face of the building.
Natural ventilation
Clause 4C.5.6 Natural Ventilation of DCP 2013 states:
Objectives
O1 To provide all habitable rooms with access to fresh air; and
O2 To minimize the need for mechanical ventilation.
Control
C1 Residential flat buildings shall comply with the principles and provisions of State Environmental Planning Policy No 65 (SEPP 65) and the Residential Flat Design Code in relation to natural
ventilation as illustrated in Figure 17.
The Rules of Thumb for Natural Ventilation in the RFDC (p 87) state:
Building depths, which support natural ventilation typically, range from 10 to 18 metres
Sixty percent (60%) of residential units should be naturally cross ventilated
Twenty five percent (25%) of kitchens within a development should have access to natural ventilation
Developments, which seek to vary from the minimum standards, must demonstrate how natural ventilation can be satisfactorily achieved, particularly in relation to habitable rooms
Mr King states that 101 of the 158 units are cross ventilated. This provides for 63.9% thereby satisfying the 60% requirement. The cross ventilation is achieved through different means and the details are set out in the table attached to Mr Kings report. The report relevantly states:
Apartments are characterised as cross ventilated by virtue of having appropriate openings and air paths between the two principal facades and are included without further discussion.
A number of top floor apartments that do not have conventional openings in two or more facades, are provided with appropriately positioned 'pop-up' monitors or skylights with controllable ventilation. These apartments are conventionally considered to have effective cross ventilation in conditions of any wind direction.
Apartments with suitable high level ventilation openings to open gallery access.
Apartments with ceiling ventilation plenums connected to the facade.
Mr Baker addressed the issue of cross ventilation for the council. He states that detail of the ventilation plenums were not provided and the skylights to the top floor units were shown as “light tubes’, which would not facilitate cross ventilation. Also, any openings for cross ventilation in the common circulation spaces could result in unacceptable acoustic privacy issues. In his assessment, there are less than 50% of the units with cross ventilation.
On this matter, I accept that cross ventilation is acceptable. Based on Mr Bakers concerns over the design of the plenums, further details were provided during the hearing (Exhibit L). As I understand, It was also agreed that the change from light tubes to openings to allow for cross ventilation could be addressed by way of a condition and any concern over any openings for cross ventilation in the common circulation spaces could be addressed through a modified plenum design.
In this case, I am satisfied that the minimum 60% standard is achieved through the different methods of cross ventilation as described by Mr King.
Natural lighting
Clause 4C.5.3 Building Depth of DCP 2013 relevantly states:
Objective
O1 To provide adequate amenity for building occupants in terms of sun access and natural ventilation.
Controls
C1 Use building depth in combination with other controls in this Part to ensure adequate amenity for building occupants. For example a deeper floor plan may be acceptable where higher floor to ceiling heights allow solar access or where apartments have a wider frontage.
C2 For residential flat development the maximum building depth shall comply with Figure 15. The maximum depth of the building is 18 metres.
C3 The maximum depth of a habitable room from a window, providing light and air to that room, is 10 metres.
C4 Single aspect apartments are to have a maximum depth of 8 metres from a window
The Rules of Thumb for Apartment Layout in the RFDC (p 69) state:
Single-aspect apartments should be limited in depth to 8 metres from a window
The back of a kitchen should be no more than 8 metres from a window
The width of cross-over or cross-through apartments over 15 metres deep should be 4 metres or greater to avoid deep narrow apartment layouts
Buildings not meeting the minimum standards listed above, must demonstrate how satisfactory daylighting and natural ventilation can be achieved, particularly in relation to habitable rooms (see Daylight Access and Natural Ventilation)
Mr King accepts that there are a number of units that are deeper than 8m to the back of the kitchen however the maximum depth is 10m. In his opinion, the control is only meaningful in relation to daylight quality and natural ventilation and in this case, the units beyond 8m in depth still compare favourably for daylight quality and natural ventilation with units that satisfy the 8m depth. Mr Colstock disagrees and maintains that the 8m requirement is generous and that a more appropriate distance is around 6.75m.
The extent of the variation to the 8m requirement was not provided however I generally accept the conclusions of Mr King. I have previously found that the proposal is acceptable in regard to Daylight Access and Natural Ventilation based on the RFDC. An inspection of the application reveals that units that exceed 8m in depth have different orientations. The additional depth beyond 8m for north facing or generally north facing units is unlikely to be problematical given their desirable aspect. For other units, daylight quality is likely to be less desirable but not to the extent that this matter would warrant the refusal or redesign of the development.

47. Ms Mikhiel also raised the matter of unit mix although this concern was not the subject of any additional evidence. I accept that the unit mix is acceptable and satisfactorily address the relevant objectives of cl 4B.5.1for Dwelling Mix, Room Size and Layout of DCP 2013 and the relevant objectives in the RFDC.
48. As stated in design principle 7 of SEPP 65, the amenity of a unit goes beyond just the area of the unit: it is a balance of physical, spatial and environmental qualities. In this case, I am satisfied that where there is a variation to the Table to the RFDC for minimum area that the variation can be justified by the good design that provides appropriate room dimensions and shapes and efficient layouts. Other factors that contribute to the amenity of the units, such as access to sunlight, natural ventilation, visual and acoustic privacy and storage, are also acceptable.

SEPP 65 – Amend 3 and the ADC

49. It is also necessary to mention SEPP 65 – Amend 3 and the ADG as they are the current applicable planning documents although I do not need to rely on these documents for my conclusions in the preceding paragraphs.
50. The parties were asked whether they sought to make any submissions on these documents as they came into effect after the conclusion of the hearing.
51. Mr Hemmings submits that SEPP 65 – Amend 3 includes a transitional provision at cl 31. then the effect of cl 31(2) is that the application must be determined “as if the amendment had not commenced. The language used in that transitional provision was most recently considered by Justice Pepper in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142. The effect of a transitional provision in those terms has the result that SEPP 65 – Amend 3 is a mandatory relevant consideration under s 79C(l)(a)(ii) of the EPA Act.
52. Any consideration of amended SEPP 65 must include consideration of the APG. The two documents work together as a package. Although it is correct to note that the APG is not a draft "environmental planning instrument", it nevertheless forms an essential part of SEPP 65 – Amend 3. It is simply not possible to properly consider the mandatory relevant consideration, SEPP 65 – Amend 3, without having regard to the APG. Although SEPP 65 – Amend 3 must be considered as a relevant consideration, it is a matter for the Court to determine what weight would be given to the instrument.
53. Once relevant, as SEPP 65 – Amend 3 is, the weight to be given to SEPP 65 – Amend 3 is a question of fact to be determined by the Court.
54. Mr Hale, for the council, submits that the statutory context and circumstances of the transitional provisions are very different from those in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142, which was relevantly directed to one particular provision, a height standard. The words in the transitional provisions were construed in a very different statutory and factual context.
55. There also significant procedural problems arise from the matters raised by Mr Hemmings submissions due to the fact that SEPP 65 – Amend 3 and the draft ADG had not been foreshadowed, and therefore were not addressed in evidence and at the hearing on the remitter. SEPP 65 – Amend 3 and the draft ADG but were not addressed in the expert evidence. The development application was not assessed against the draft APG. The council drew attention to the fact that the development appeared to be in breach of a significant number of provisions of the ADG in significant respects.
56. Also, the submissions proceed upon the assumption that the consultation provisions under s38 of the EPA Act were engaged so as to engage s79C(l)(ii). This assumption might or might not be correct.
57. The transitional provisions in cl 31 of SEPP 65 – Amend 3 must be interpreted in their statutory context. This includes the fact that amongst the amendments to SEPP 65 was the replacement of the RFDC by the APG It is not just an amendment to the RFDC. It is an entirely new code which entirely replaced the RFDC. Amongst other things it has different standards and provisions including in relation to apartment size.
58. If SEPP 65 – Amend 3 and the APG are to be used as a basis of assessment of the development application, the development application must be assessed against all of its provisions.
59. In considering the submissions, I am satisfied that SEPP 65 – Amend 3 and the APG are not documents that would necessarily fall within the line of authority established in Maygood and Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 for draft environmental planning instruments however SEPP 65 – Amend 3 and the APG clearly establish the direction that the State government has established for the development of apartment buildings. The reliance on council development control plans has been reduced by the inclusion of cl 6A and the standards in the ADC and some weight must be given to this clear change in direction for the design of apartment buildings.
60. In this case, I have had no need to give any weight to SEPP 65 – Amend 33 and the ADG in concluding that the proposed development is acceptable however the same application submitted after the coming into effect of SEPP 65 – Amend 3 and the ADC would satisfy the numerical requirements of the ADG in relation to unit sizes based on the evidence of both Mr Chambers and Ms Mikhiel.

Orders

61. There being no reason why the development application, after a proper consideration of the matters raised in the remitted hearing and s 79C(1) generally, should not be approved. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No 2012/233/1 for the demolition of all improvements and the construction of a 3-6 storey residential development, containing 154 units, basement car parking, landscaping and ancillary works at 72-86 Bay Street, Botany is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibit G.

_______________

G T Brown

Acting Senior Commissioner