Hind Holdings NSW Pty Ltd v Cumberland City Council [2022] NSWLEC 1263

Land and Environment Court New South Wales

Medium Neutral Citation: Hind Holdings NSW Pty Ltd v Cumberland City Council [2022] NSWLEC 1263 Hearing dates: 12-13 May 2022 Date of orders: 23 MAY 2022 Decision date: 23 May 2022 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No. 2020/0608 for the demolition of existing structures and construction of a ten storey mixed-use building comprising 58 residential units and ground floor commercial tenancies over basement car parking, at 39 Church Street, Lidcombe, is refused. (3) The exhibits, other than 1 and C, are returned. Catchwords: DEVELOPMENT APPLICATION – mixed use building – contravention of the height of buildings development standard – detrimental impact on adjoining heritage item – inadequate side setbacks – unarticulated form of development Legislation Cited: Auburn Local Environmental Plan 2010, cll 4.3, 4.4, 4.6, 5.10, 6.4 Cumberland Local Environmental Plan 2021 Environmental Planning and Assessment Act 1979 ss 4.15, 8.7 Land and Environment Court Act 1979 ss 34, 39 State Environmental Planning Policy No 65-Design Quality of Residential Apartment Development, cll 4, 28 Cases Cited: Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Auburn Development Control Plan 2010 Cumberland Development Control Plan 2021 Category: Principal judgment Parties: Hind Holdings NSW Pty Ltd (Applicant) Cumberland City Council (Respondent) Representation: Counsel: P Tomasetti SC (Applicant) C McFadzean (Solicitor) (Respondent)

Solicitors: Wilshire Webb Staunton Beattie (Applicant) Cumberland City Council (Respondent) File Number(s): 2021/266312 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2020/0608 for the demolition of existing structures and construction of a ten storey mixed-use building comprising 58 residential units and ground floor commercial tenancies over basement car parking (the proposal) at 39 Church Street, Lidcombe (the site) by Cumberland City Council (the Council). 2. The appeal was subject to conciliation on 4 February 2022, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. Issues 1. The Council's contentions can be summarised as: * The proposed building height of 32.88m is excessive and fails to adhere to the maximum building height under the Auburn Local Environmental Plan 2010 (LEP 2010). The cl 4.6 submission fails to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and further fails to demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard. * The proposal will detract from the heritage significance and setting of the adjoining Lidcombe Fire Station, which is a local heritage item. * The height and scale of the development is excessive. Combined with inadequate setbacks, the development produces an inappropriate streetscape outcome. If 33-35 Church Street is redeveloped to resemble or replicate the height, scale and siting of the proposal, when viewed in conjunction with the proposal, the Lidcombe Fire Station would be inappropriately sandwiched between two high rise buildings. * The proposal has inadequate side and rear setbacks, which would result in the proposal borrowing amenity from adjoining sites and detracting from their future redevelopment prospects. * The proposal would produce an inappropriate urban design outcome in that it fails to respond to the sensitive urban context. The long, unbroken expanse of the east and west façades produce a poor urban design outcome. * The excessive 48.8m length of the proposal results in an inappropriate, boxy built form lacking articulation. * The site is not suitable for the proposal. The site's constraints, in particular the adjoining two heritage items and its dimensions renders it incapable of achieving a satisfactory development outcome whilst concurrently developing at, near or over LEP density controls going to building height and floor space ratio (FSR). * The acoustic report submitted with the application recommends the provision of air conditioning or mechanical ventilation to allow doors and windows to be closed to help achieve satisfactory acoustic amenity. No information has been provided as to the form of air conditioning or mechanical ventilation to be provided and how the plant will be accommodated in the basement of the proposal. 1. The following contentions raised by the Council in the Statement of Facts and Contentions (Ex 1) were resolved to the Council's satisfaction by the provision of additional information, amendments to the proposal or conditions of consent: * The basement excavation is proposed within the alignment of the sewer and no material has been put forward as part of the application addressing the possibility or practicality of relocating the sewer, noting in particular the location of buildings on adjoining sites which constrain the ability for a horizontal relocation of the sewer line. Contrary to cl 6.4(1)(c) of LEP 2010, it has not been demonstrated that adequate arrangements have been made for the disposal of sewage. * Only 53% of units receive at least 2 hours of directed sunlight between 9am and 3pm on the winter solstice to their living rooms and private open space. * The quality and amenity of the communal open space are unacceptably poor. * The waste storage and management arrangements are unsatisfactory. * The apartment mix fails to provide an appropriate mix of units that caters for differing household requirements. * The proposed basement has no setbacks from the eastern and western boundaries. Excavation will occur immediately adjacent to the east wall of the heritage item, which is located on the boundary. No information has been provided to demonstrate the methodology for excavation and construction of basement retaining structures that provides certainty that the structural stability of the heritage item will be maintained. The site and its context 1. The site is on the northern side of Church Street, opposite Lidcombe Railway Station, on the block bounded by John Street to the west and Swete Street to the east. 2. The site has a width of 20.115m and an area of 1,214m2 (Ex C, tab 21). The site contains a three storey mixed use building with a parking area at the rear of the building. 3. St Joachim's Catholic Primary School (the school) adjoins the site to the east and to the rear. 4. The recently constructed residential flat building at 43 Church Street, to the east and south of the school, has a 3.552m western side setback to the school (with a small encroachment of two angled blade walls into the setback) and a 10m rear setback (with a small encroachment of a portion of balconies into the setback), and the overall length of the western elevation is less than 24m, according to the architectural plans in Ex D. I note that the plans in Ex D do not match the eastern elevation of the "Lidcombe Sky" development at 43 Church Street, which does not include blade walls along the eastern elevation and has windows facing east. 5. The Lidcombe Fire Station adjoins the site to the west. The eastern façade of the fire station building is the western boundary of the site. The eastern eave and gutter of the fire station building encroaches on the site (Ex C, tab 21). 33-35 Church Street is to the west of the Fire Station. Background and the proposal 1. The proposal consists of the following: * Four basement levels of car parking. * Ground Floor: commercial unit, plant, waste, residential storage, bicycle storage, ramp to basement parking, and communal open space under an undercroft at the rear of the building. * Levels 01-09: 58 residential units. 1. The lower two floors towards the front of the building are clad in face brickwork to form a podium. 2. The Church Street setback aligns with the Fire Station building for the Ground Level and Level 01, with a minimum 4m setback. The upper levels are setback from the southern façade of the podium. 3. The western setback is 3.035m, 3.145m, 3.005m and zero setback at the rear of the building. 4. The eastern setback is 3m and 3.4m. 5. The rear setback is 6m. Planning framework 1. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) applies to the proposal at cl 4(1)(a)(i). In determining a development application for consent to carry out development to which SEPP 65 applies, the consent authority is to take into consideration the Apartment Design Guide (ADG), at cl 28(2)(c). To achieve visual privacy on adjacent properties, adequate separation distances should be shared equitably between neighbouring sites. The design criteria for setbacks between habitable rooms and balconies, and non-habitable rooms, is as follows, at objective 3F-1 of the ADG: Building Height Habitable rooms and balconies Non-habitable rooms 4 storeys 6m 3m 5-8 storeys 9m 4.5m 9+ storeys 12m 6m

1. The Cumberland Local Environmental Plan 2021 (LEP 2021) commenced on 5 November 2021. LEP 2021 contains a savings provision for applications in relation to land to which LEP 2021 applies, lodged prior to the commencement of LEP 2021 but not finally determined before that commencement, requiring the application to be determined as if LEP 2021 had not commenced. The relevant provisions of LEP 2021 are a matter for consideration in determining the application (s 4.15(1)(a)(ii) of the EPA Act). 2. The site is zoned B4 Mixed Use pursuant to LEP 2010 and the proposal, for commercial use at the ground floor and residential units on the upper levels, is permissible with consent. The objectives of the zone, to which regard must be had, 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 encourage high density residential development. • To encourage appropriate businesses that contribute to economic growth. • To achieve an accessible, attractive and safe public domain. 1. The site is zoned B4 Mixed Use pursuant to LEP 2021 and the proposal would be permissible with consent under LEP 2021. The objectives of the B4 zone under LEP 2021 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. 1. The height of buildings development standard for the site is 32m (cl 4.3 of LEP 2010). The objectives of the height of buildings development standard, at cl 4.3(1) of LEP 2010, are: (a) to establish a maximum height of buildings to enable appropriate development density to be achieved, and (b) to ensure that the height of buildings is compatible with the character of the locality. 1. The height of buildings development standard for the site under LEP 2021 is 38m. 2. The FSR development standard for the site is 5:1 (cl 4.4 of LEP 2010). The FSR development standard under LEP 2021 is also 5:1. The proposal has a FSR of 4.2:1. 3. Lidcombe Fire Station, at 37 Church Street, is identified as a heritage item (item 32, Sch 5 to LEP 2010). The State Heritage Inventory statement of significance for the Fire Station is as follows: Lidcombe Fire Station is historically significant because it represents an early historical stage in the construction of Stations for the Fire Brigades of NSW. Evidence is preserved of the historical development of the workplace. The building is aesthetically significant as a good example of an intact Late Victorian / Federation Utilitarian building. 1. St Joachim's Catholic Church, Parish Hall and School, at John Street and 7 Mary Street, is identified as a heritage item (item 39, Sch 5 to LEP 2010). Only St Joachim's primary school adjoins the site, the other buildings identified as part of the heritage item are on another block to the north of the site. Clause 5.10 of LEP 2010 has, as an objective, the conservation of heritage items, including associated fabric, setting and views. 2. The Cumberland Development Control Plan 2021 (DCP 2021) contains a savings provision at 1.1.4 that DCP 2021 does not apply to an application which was lodged with the Council but not finally determined at the commencement of DCP 2021 on 5 November 2021 (at 1.1.3 of DCP 2021). The application is to be assessed in accordance with the previous DCP which applied at the time the application was lodged on 15 October 2020. The Auburn Development Control Plan 2010 (DCP 2010) applied to the application on the date it was lodged. 3. The Residential Flat Buildings section of DCP 2010 includes the following relevant objectives for built form at 2.0: "a. To ensure that all development contributes to the improvement of the character of the locality and streetscape in which it is located. d. To ensure that the proposed development protects the amenity of adjoining and adjacent properties. e. To ensure that the form, scale and height of the proposed development responds appropriately to site characteristics and the local character. f. To ensure that development relates well to surrounding developments including heritage items, open space and other land uses. i. To provide an acceptable interface between different character areas." 1. The Residential Flat Buildings section of DCP 2010 includes the following relevant performance criterion and development control for site area, at 2.1: "P1 The site area of a proposed development is of sufficient size to accommodate residential flat development and provide adequate open space and car parking consistent with the relevant requirements of this DCP. D2 Where lots are deep and have narrow street frontages the capacity for maximising residential development is limited. Two or more sites may need to be amalgamated to provide a combined site with sufficient width for good building design." 1. The Residential Flat Buildings section of DCP 2010 includes the following relevant performance criterion for setbacks, at 2.4: "P3 Ensure adequate separation between buildings, consistent with the established character and rhythm of built elements in the street." 1. The Residential Flat Buildings section of DCP 2010 includes the following relevant performance criterion and development control for building depth, at 2.5: "P1 A high level of amenity is provided for residents including solar and daylight access. D1 The maximum depth of a residential flat building shall be 24m (inclusive of balconies and building articulation but excluding architectural features)." 1. The Residential Flat Buildings section of DCP 2010 includes the following relevant performance criterion and development control for heritage, at 2.8: "P1 Development does not adversely affect the heritage significance of heritage items and heritage groups and archaeological sites as well as their settings, distinctive streetscape, landscape and architectural styles. D1 All development adjacent to and/or adjoining a heritage item shall be: * responsive in terms of the curtilage and design; * accompanied by a Heritage Impact Statement; and * respectful of the building's heritage significance in terms of the form, massing, roof shapes, pitch, height and setbacks." 1. The Local Centres section of DCP 2010 includes the following relevant development controls for an interface with schools, places of public worship, and public precincts, at 2.6: "D1 Where a site adjoins a school, place of public worship or public open space: * Building design incorporates an appropriate transition in scale and character along the site boundary(s); * Building design presents an appropriately detailed facade and landscaping in the context of the adjoining land use." 1. The site is within the Lidcombe Town Centre and is identified as being part of the key site 3 – Mary Street South by Figure 10 of the Local Centres section of DCP 2010, at 15.5. The objectives for the Mary Street South site include: "b. To protect the amenity of the adjacent school and ensure appropriate transitions in scale from the proposed taller buildings on John Street. c. To encourage development that is sensitive in scale and character to the heritage items within the site." Submissions 1. According to the Council, the principal point of difference between the parties is the weight that they say should be given to the development standards under LEP 2010. 2. The Council submits that the development standards under both LEPs are merely blanket controls, which have been imposed without any strategic planning analysis for this site and should not be relied upon as a presumption that the maximum controls can be achieved, because the site is constrained by being sandwiched between heritage items. There is no strategic rigour behind the development standards that determine the building envelope for the site, as those development standards have not evolved from fine grained studies, but instead were proposed by a councillor and endorsed by the Council at the time, contrary to the advice of Council staff. The Department of Planning gave conditional consent to proceed with the planning proposal that included the applicable development standards for this application, yet the condition imposed by the Department to justify the controls was never fulfilled. The instructions given to the consultant for a recent strategic analysis of the area was to retain the FSR development standard and use each FSR development standard to determine an appropriate height of buildings development standard. For this reason, the development standards for this site should be approached with a degree of caution, and not uncritically adopted. Development standards are not an entitlement, or a starting point. They are not development rights. Regard must be given to the constraints of the site to see if the development standards for the building envelope can be achieved. 3. The applicant submits that the Council cannot avoid the consequences of its own planning decisions and that the design response is consistent with the planning regime and the urban context. It is appropriate to have regard to the zone and development standard objectives, not the historic strategic planning documents behind the final development standards. One cannot conclude that the increase in height on the site from 32m (under LEP 2010) to 38m (under LEP 2021) has not been well considered. 4. The applicant submits that the site is not sandwiched between two heritage items, because the heritage experts agreed that the proposal has no impact on the identified heritage significance of the school. The applicant submits that a 3m setback to the school is appropriate because there no suggestion that the school will be redeveloped. 5. The Council submits that the relationship between the proposal and the school is not satisfactory from the perspective of urban design and planning, because of the excessive length of the proposal and its unarticulated eastern and western elevations, which will be plainly visible over the Fire Station from the west and the school from the east. The bulk of the proposal will be very apparent. 6. The applicant submits that there is no mandatory consideration of the impact of the proposal on the heritage significance of the adjoining heritage items under the heritage conservation clause, cl 5.10 of LEP 2010, because sub-cl 5.10(4) applies only to a heritage item, or a heritage conservation area, and the site is not identified as a heritage item, nor is it within a heritage conservation area. Clause 5.10 is therefore not triggered by the application. Consideration of the impact of the proposal on the adjoining heritage item, the Lidcombe Fire Station, is explicitly required by the relevant provisions of DCP 2010. The curtilage of the Fire Station, as a utilitarian building, is the lot boundary. A heritage item is not a constraint, it is merely a consideration, and it must be carefully considered. The proposal responds appropriately to the heritage significance of the Fire Station. The potential for future development at the rear of the Fire Station has been anticipated by the zero setback of the proposal, which would permit a corresponding zero setback on the adjoining property abutting the proposal. 7. The Council submits that I need not rely on cl 5.10(4) of LEP 2010, because DCP 2010 explicitly requires consideration of the impact of the proposal on the heritage significance of the adjoining items, as does s 4.15(1)(b) of the EPA Act. There is no dispute that the impact of the proposal on the heritage significance of the Lidcombe Fire Station is a relevant consideration in determining the application. 8. The applicant submits that significant weight should be given to the relevant provisions of the recently commenced LEP 2021, as a mandatory consideration under s 4.15 of the EPA Act, particularly the increased height of buildings development standard under LEP 2021 with which the proposal comfortably complies. Expert evidence 1. The applicant relied on the expert evidence of Jeremy Swan (planning), Philip North (heritage) and Steven Kennedy (urban design). The Council relied on the expert evidence of Brian McDonald (planning, heritage and urban design). 2. The experts prepared a joint report (Ex 2 and 3) and gave concurrent oral evidence. Contravention of the height of buildings development standard 1. The proposal has a maximum height of 32.88m. The height of buildings development standard for the site is 32m. 2. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by Mr Swan and dated 1.5.22 (Ex 2, tab 7). 3. Clause 4.6(4) of LEP 2010 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] "Initial Action"). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (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 Secretary has been obtained. 1. On appeal, the Court has the power under cl 4.6(2) of LEP 2010 to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action at [29]). The applicant's written request to contravene the height of buildings development standard 1. The first opinion of satisfaction required by cl 4.6(4)(a)(i) of LEP 2010 is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: (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 1. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) of LEP 2010 have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3), and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]). 2. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ("Wehbe") and repeated in Initial Action [17]-[21]: * the objectives of the development standard are achieved notwithstanding non-compliance with the standard; * the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; * the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; * the development standard has been abandoned by the council; * the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers). 1. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]). 2. The applicant's written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. According to the written request, only a corner of the building and the lift overrun exceed the height of buildings development standard. The numerical exceedance is minor, 850mm according to the applicant, and 880mm according to the Council. The applicant's written request justifies the exceedance on the bases that no adverse impacts result from the portion of the built form that exceeds the maximum height, and the proposal is consistent with the desired future character of the area because the proposed height is lower than the height of buildings development standard of 38m under LEP 2021. 3. The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard, and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard, and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]). 4. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the exceedance of the height of buildings development standard as justified by the increase in the height of buildings development standard under LEP 2021. I am satisfied that justifying the aspect of the development that contravenes the development standard can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23]. Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone 1. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]). 2. I am satisfied that the proposal achieves the following: * a mixture of compatible land uses, as the proposal is for a ground level commercial tenancy fronting Church Street and residential apartments; * integrates business and residential accommodation in an accessible location across the road from the Lidcombe Railway Station; * high density residential development; * an appropriate and accessible presentation to Church Street; and * a height that is compatible with the character of the locality as anticipated by the height of building development standard in LEP 2021.

Consideration of the merits of the proposal 1. I accept the agreed evidence of the heritage experts that the proposal does not impact on the identified heritage significance of the school. I accept their agreed evidence that the most significant building on the site is the "pre-1938" school building fronting the playground, shown in Figure 25 of the Heritage Impact Statement prepared by Weir Phillips Heritage and Planning, and dated March 2021 (Ex C, tab 6), and this building is not impacted upon by the proposal. I accept the agreed evidence of the heritage experts that the 1950s-1960s school building, to the east of the site, is of low heritage significance and is therefore a potential site for the future development of the school's facilities (Ex 2, par 60). 2. I accept and prefer Mr McDonald's evidence that the bulk, scale and proximity of the ten-storey building to its western neighbour would have a dominating effect on the setting of the Lidcombe Fire Station. I accept the applicant's experts' opinion that there will be a tall building on the site, given the development standards for the site under LEP 2021, however the relatively narrow width of the site coupled with the constraints posed by the heritage significant Fire Station located up against the shared boundary and the close proximity of the school on the other side require a skilful design to achieve a tall residential building on the site that is responsive to the immediate context. I agree with Mr McDonald's evidence that some effort has been made to relate the proposal to the Fire Station, by aligning the front setback of the proposal with the Fire Station's southern façade, by including a face brick podium, and by setting the upper levels back from the podium. The lack of articulation in the building envelope of the proposal and the narrow side setback to the adjoining Fire Station result in a proposal which unreasonably dominates the setting of the Fire Station. A successful interface between a development proposal for the site and the Fire Station must accommodate the differences in scale between the two and achieve an appropriately decorous building base at the front of the site. 3. I agree with Mr Kennedy's evidence that, "to a degree, the proposed development takes advantage of the two heritage items". In his view, to do so is not unreasonable, and it is a sensible approach to development. The proposal is inconsistent with the separation distances recommended by the ADG and does not include an increased side setback for the upper levels. The proposal significantly and unreasonably constrains the future development of the school property to the east, in the location agreed by the heritage experts as a likely location for future development, and the rear of the property of the Lidcombe Fire Station with inadequate and unrelieved side setbacks to boundaries, including a nil setback to the rear of the Fire Station property. 4. The unrelieved length of the building envelope of the proposal is excessive and the lack of articulation in its form eliminates any relief along the long ten storey eastern and western façades. The unrelieved form of the building envelope does not create any opportunities for future development on adjoining sites to be offset with the proposal. These aspects of the proposal would have a detrimental impact on the future development potential of adjoining properties and the amenity of any future development on adjoining properties. I accept and agree with Mr McDonald's evidence that the magnitude of the non-compliances with the separation distances recommended by the ADG seriously impinges on the development potential of adjoining properties, regardless of the use of that future development. I agree with his evidence that the nil setback of the proposal on a portion of the western boundary would dictate and constrain the future development of the rear of the Fire Station property. The nil setback along part of the western boundary is an anomaly in its context, which consists of a suburban pattern of buildings with side setbacks, unlike the more urban figure/ground relationships of built form in nearby John Street. 5. The proposal is inconsistent with the development controls for an interface with schools, at 2.6 of DCP 2010, because the inadequate eastern side setback of the proposal and the excessive length of the unrelieved side setback does not protect the amenity of the adjacent school. I accept and agree with Mr McDonald's evidence that the proposal has no effective measures to articulate the long, high, unrelieved side elevations of the proposal. 6. On the basis of all of the evidence before me, I find that the proposal is inconsistent with the objectives for the built form of residential flat buildings at 2.0 of DCP 2010, to ensure that the proposed development protects the amenity of adjoining and adjacent properties, to ensure that the form, scale and height of the proposed development responds appropriately to the site characteristics and the local character, and to ensure that development relates well to surrounding developments including heritage items, and other land uses. Conclusion 1. I am satisfied, pursuant to cl 4.6(4) of LEP 2010, that the applicant's written request to contravene the height of buildings development standard under LEP 2010 has adequately addressed the matters required to be demonstrated by sub-cl 4.6(3), and that the proposal would be in the public interest because it is consistent with the objectives of the height of buildings development standard and the objectives for development within the B4 zone. 2. The proposal fails to adequately respond to the site's context and constraints. The proposal is inconsistent with the objectives for built form for residential flat buildings at 2.0 of DCP 2010 because the form of the proposal is insensitive to the constraints of the site and would have unacceptable impacts on the future development potential of adjoining properties. The proposal's inconsistency with the objectives for the built form of residential flat buildings under DCP 2010 is determinative. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 2020/0608 for the demolition of existing structures and construction of a ten storey mixed-use building comprising 58 residential units and ground floor commercial tenancies over basement car parking, at 39 Church Street, Lidcombe, is refused. 3. The exhibits, other than 1 and C, are returned. ____________ Susan O'Neill Commissioner of the Court

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 May 2022