5 Bulga Road Pty Ltd v Waverley Council

The evidence

Detailed evidence was presented in a joint expert report by:

Ms S Francis; Consulting town planner for Applicant,
Ms K Castellanos; Urban design consultant for Applicant,
Ms C Brown; Consulting town planner for Council,
Ms D Ridenour; Urban design consultant for Council,
Dr R Lamb; View impact assessment, which provided separately.

The planning and urban design experts undertook a detailed merit assessment of the amended proposal, on the following basis, in order to assess its compatibility within the context of the neighbourhood. This assessment recognised the existing use provisions and involved consideration of the relevant planning instruments as they apply to the surrounding area, generally on the basis outlined in the planning principle Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71, wherein the Senior Commissioner said: 17. Four questions usually arise in the assessment of existing use rights developments, namely: • How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites? While planning controls, such as height, floor space ratio and setbacks do not apply to sites with existing use rights; they have relevance to the assessment of applications on such sites. This is because the controls apply to surrounding sites and indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered in all planning assessment. • What is the relevance of the building in which the existing takes place? Where the change of use is proposed within an existing building, the bulk and scale of that building are likely to be deemed acceptable, even if the building is out of scale with its surroundings, because it already exists. However, where the existing building is proposed for demolition, while its bulk is clearly an important consideration, there is no automatic entitlement to another building of the same floor space ratio, height or parking provision. • What are the impacts on adjoining land? The impact on adjoining land should be assessed as it is assessed for all development. It is true that where, for example, a development control plan requires three hours of sunlight to be maintained in adjoining rear yards, the numerical control does not apply. However, the overshadowing impact on adjoining rear yards should be reasonable. • What is the internal amenity? Internal amenity must be assessed as it is assessed for all development. Again, numerical requirements for sunlight access or private open space do not apply, but these and other aspects must be judged acceptable as a matter of good planning and design. None of the legal principles discussed above suggests that development on sites with existing use rights may have lower amenity than development generally.
Insofar as the land is zoned R2 - Low Density Residential under WLEP 2012 and contains a number of development standards, cl 2.3 (2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
Accordingly the relevant objective for this zone is: To provide for the housing needs of the community within a low density residential environment.
Overdevelopment: The planners noted that whilst the amended proposal has an FSR of 1.28:1 that exceeds the development standard in the LEP, nevertheless they agree that the non - compliance is acceptable in the context of this development and its surroundings. Furthermore, they acknowledge that whilst there is an increase in the bulk, height and scale and intensity compared to the existing RFB on the site, nevertheless the amended design with the increased landscaping and setbacks results in an improved presentation of the building to the adjoining properties and the public domain.
The planners also agree that the amended design features of increased setbacks, good articulation, window orientation and provision of landscape areas minimise to an acceptable level any potential privacy impacts on neighbouring properties. Accordingly all planners agree that the overdevelopment contention is satisfied.
Streetscape: Part of the amendments included the adjustment of the front balconies to align with the same setback as those on the adjoining RFB at 1 Bulga Road. Consequently the experts consider that the amended design which includes increased setback to side boundaries, splayed side elevations, and additional planters along the side boundaries will increase visual separation and landscaping between buildings and will reinforce the existing pattern of buildings and landscaping along the street.
Furthermore, as the proposed development is located between the existing taller residential flat building to the west and a lower dual occupancy development to the east, the planners agree that the amended proposal represents a satisfactory transition in scale from No. 1 to No. 7 Bulga Road. Visually and in terms of scale, height and setbacks, together with the improved landscape setting (to be conditioned) it will result in a development that is consistent with the character of the streetscape.
Amenity: This contention mainly related to the internal amenity considerations. Relevantly the planners considered the following elements:

The amendments to the window design and placements will enable cross ventilation without reliance on the large sliding doors in the northern and southern elevations being left open.
The amended layout has introduced operable elements reducing the extent of fixed glazing so introducing additional opportunities to achieve natural ventilation and a quality internal amenity for future residents.
The proposal as shown on the amended plans increases the quantum of landscape open space and relates the private open space better to the associated units providing a functional area of open space with quality amenity for the future residents of the development. No communal open space is proposed and this is considered reasonable in the context of this proposal.
The amended layout and design results in an improved landscape treatment to Bulga Street. WDCP requires 30% of the site to be available as landscaped area. The amended landscape area now proposed will be 37%. This will be increased through the proposed condition requiring additional landscaped area adjacent to unit 1 as shown in the figure below. The requirements of WDCP regarding total landscaped area will be achieved.
The amended proposal incorporates 27.4% deep soil landscaping plus additional areas of landscape area above slabs that are drained and of a soil depth capable of supporting a variety of plant growth. It is considered the objectives of the landscape controls are met by the proposed landscape areas.

Consequently, the planners agree the proposal satisfactorily addresses the amenity impact issues and it will not unreasonably impact on impact views from adjoining properties and therefore supports its conditional approval.
Resource, energy and water efficiency: This issue concerned the provision of adequate cross ventilation and solar access. The planners agree that this issue is satisfactorily addressed.
View loss: This issue concerns possible view loss from units in the adjoining RFB at 1 Bulga Street, particularly Units 6 and 1.These views comprises northerly views towards Diamond Bay and easterly views over the side boundary towards the ocean.
The planners now agree that the amended proposal has resulted in a reduction in building height of 180mm, increased building articulation and side and rear boundary setbacks. While the amended proposal will result in the partial loss of ocean and locality views from the private open space and living areas of dwellings in adjacent No1 Bulga Road (Units 3 and 6) and 2/247 Military Road, they consider that the proposal will result in reasonable view sharing.
However they consider that in order to protect future views across the subject site from No 1 Bulga Street it is reasonable to impose a condition requiring an amended landscape plan to be prepared detailing landscape treatment to the sites western boundary that will grow no higher than and be maintained at a height not higher than RL 61.51 m AHD, being the height of the roof top of units 4 and 5.
Consequently, the experts consider that the lowering of the overall building height, the increased western boundary setbacks and the redesign of the western elevation incorporating 'splayed' elements narrowing the width of the building as it presents to the street also allows for improved views from adjoining properties and presentation to the north are satisfactory to address this issue.
Parking: This issue concerned the adequacy and suitability of the proposed parking arrangements. The amended proposal now provides 7 parking spaces, including 1 accessible space. Whilst not a determinative control, these provisions satisfy the car parking requirements of WDCP. A basement turntable is also included to facilitate safe and convenient access.
Accordingly the planners agree that the parking issue relative to vehicles, bikes and storage is adequately resolved.
Public interest: The development application attracted a considerable number of objections that were considered at both the s34 Conference and the hearing. One of the main concerns related to excessive development of the site, which would likely cause adverse access and traffic problems both during and post development. Whilst I accept there can be some issues with the level of service available due to the alignment of Bulga Street, nevertheless Council does not consider the incremental change arising from the approval of this development sufficient to warrant refusal of the application.
A traffic report from Transport and Traffic Planning Associates was submitted on behalf of the Applicant. This assessed parking arrangements and assessed potential traffic implications arising from the development. It concludes that the development will:

not present any unsatisfactory traffic capacity, safety or environmental related implications.
incorporate a suitable and appropriate parking provision.
incorporate suitable vehicle access, internal circulation and servicing arrangements.

In the absence of any other expert evidence, I rely on this conclusion that the incremental change arising from the development is acceptable. However I consider it reasonable to include conditions in the Construction Management Plan to ensure construction traffic is managed to minimise disturbance to residents.

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

Parties

Cases Cited (2)