777 OSH Pty Ltd v Waverley Council

777 OSH Pty Ltd v Waverley Council - [2010] NSWLEC 138 - NSWLEC 2010 case summary — Zoe

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JUDGMENT 1 His Honour: This is an appeal under section 97(1) of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Waverley Council of a development application which proposed alterations and additions to an existing building and change of use from a conference centre to a mixed use development. 2 I acknowledge the assistance of Commissioner Morris. 3 Initially, the proceedings involved an issue in relation to whether existing use rights applied to the property. However this is not pressed and, therefore, only the merits of the application remain to be determined. 4 The issues between the parties have been resolved and they are seeking consent orders from the Court allowing the appeal and granting development consent subject to conditions. 5 The property is known as 773-777 Old South Head Road, Vaucluse and is on the eastern portion of Old South Head Road opposite the intersection of New South Head Road. It is zoned 3(c) Business Neighbourhood under the provisions of Waverley Local Environmental Plan 1996 (the LEP). 6 It is the only parcel of land that is zoned Business Neighbourhood, the surrounding land being zoned Residential 2(c1). 7 The property is made up of two separate lots and contains a 3 storey building with basement car parking and a swimming pool. The land is irregular in shape with a frontage to Old South Head Road of 20.17 metres, a northern frontage of approximately 35.64 metres facing Christison Park and a southern boundary of 50.155 metres while the eastern boundary is 15.045 metres. The total area is 618.7 square metres. The land falls towards Old South Head Road and is located at the lowest level of the adjoining local business centre. Current development comprises a three storey building with basement car parking and a rooftop containing a range of telecommunication towers. The parties agree that the existing development is visually unattractive. 8 The property is not listed as an item of heritage significance and is not within a heritage conservation area and is not located within a residential character study area of the respondent. 9 Adjoining the site to the north is Christison Park. To the south and at the rear are residential flat buildings and small scale shop/commercial premises. To the east are a mix of residential flat buildings and dwellings, Clarke Reserve and the Ocean. To the West across Old South Head Road are low scale residential dwellings. 10 The adjoining residential development contains a mix of single story residential dwellings up to high-rise residential flat buildings. The predominant residential zoning in the locality is Residential 2(c1) which, according to the expert planners, permits residential flats up to a maximum wall height of 9.5 metres and an overall maximum height of 12.5 metres incorporating a potential fourth level comprising an attic or part storey subject to compliance with relevant planning controls.

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Statutory Controls 12 The primary statutory controls are: Waverley Local Environmental Plan 1996 (LEP). The proposal constitutes a "mixed development" which is permissible with consent in the 3(c) zone. Development Control Plan 2006 (Amendment No.4) (DCP). State Environmental Planning Policy No.65- Design Quality of Residential Flat Development (SEPP 65). State Environmental Planning Policy No.1 (SEPP 1). 13 Mixed development is defined in Schedule 2 to the LEP as follows: "mixed development means a residential flat building, dual occupancy, dwelling-house, boarding house, hostel or serviced apartment within the same building as shops, commercial premises or any other non-residential use." 14 A Joint Planning Report was prepared by the parties' planners, Ms K Gordon for the Council and Mr T Moody for the applicant. Following the finalisation of their report, further discussions were held regarding an amended proposal. The amended proposal now before the Court comprises additional indents on the northern façade, the provision of substantial planter beds on the northern façade, and the provision of trees in the rear yard area considered necessary by Ms Gordon. The amended proposal also provides further details of the proposed access to the ground floor coffee shop, which were considered necessary by the planning experts. Finally, the amended plans provide increased setbacks to the fourth floor level from both the northern (facing Christison Park) and western (facing Old South Head Road) boundaries and a reduction in the depth of the awning projecting over the balconies to those frontages at that level. The increases in setback are intended to reduce the visibility of the fourth floor and were considered necessary by Ms Gordon. The planning experts both support the amended plans now before the Court. 15 There is only one objection to the proposal which covers issues of the treatment of the telecommunication towers and the provision of blinds. 16 In relation to the existing telecommunication towers, the amended proposal will consolidate the towers into a smaller area on the roof and the towers will be set back a greater distance from the boundary than the existing towers. 17 More importantly, the equipment shelters will be consolidated into a communications room within the basement carpark area. 18 The planning experts consider that these measures will improve the existing streetscape. However, Ms Gordon considers it appropriate to alter the shape (but not the location) of the area proposed for the telecommunication towers to maximise the setback from Old South Head Road and minimise the visibility of the structures. This is required by proposed agreed Condition 2(e). Responding to the objector's concerns, that condition was amended during the proceeding to minimise the size of the equipment area on the roof. I am satisfied that the condition as amended will significantly reduce the visual impact of the towers. 19 In relation to the objector's point that blinds should be provided and style and colour mandated, the planning experts agree that the proposed overhangs will assist in shading of the proposed development and that it is not reasonable to seek control of the design by internal blinds or curtains. I do not consider that it is necessary to control the window furnishings within the proposed development.

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Contentions 20 Existing Use Rights: There was a contention raised by Council that the applicant had not provided sufficient information to establish that the site enjoys existing use rights. For its part, the applicant asserted that the subject site enjoyed existing use rights for a residential executive training lodge which it contends continues up the current date. However, given the agreement of the parties to the current amended proposal, on the basis of the application being for a permissible use within the zone and relying upon the submitted SEPP 1 objections, the applicant decided not to press the issue of existing use rights in these proceedings but to reserve its rights on this issue. 21 SEPP 1 Objection: The proposal breaches two development standards under the LEP, being Height and Floor Space Ratio (FSR). 22 Clause 27 of the LEP limits the FSR in the 3(c) zone to 1:1 where the development incorporates residential accommodation within a mixed development. The development satisfies this requirement and accordingly the 1:1 control applies. The existing building has a FSR of 1.76:1 and the proposed FSR is 2.45:1. 23 Clause 28 of the LEP establishes height controls for development in business zones and provides for a maximum height of nine metres. The existing building has a height of 14.13 metres including the communication structures and the proposed height is 14.48 metres. 24 Given the recent decision in Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58, 173 LGERA 240 (Pain J) the applicant lodged SEPP 1 objections relating to Height and Floor Space Ratio on a "without admission basis." As the applicant no longer seeks to rely upon existing use rights for the purposes of this appeal, the assessment of the proposed development has proceeded in reliance upon those SEPP 1 objections. 25 Ms Gordon for Council considered that the SEPP 1 objections relating to the original proposal were not well founded but Mr Moody for the applicant disagreed. However, Ms Gordon now considers that the amended proposal, which incorporates her recommended landscaping treatment and additional indents on the northern facade and increased fourth floor setbacks, results in a supportable development. Accordingly, both planning experts now agree, as do I, that the SEPP 1 objections are well founded. 26 Although the variations to both the floor space ratio and height controls are significant, I agree with the conclusions of the planning experts that these variations are appropriate in the context of the site and its proximity to the Residential 2(c1) zone. 27 Streetscape: The primary issue between the parties relating to the original proposal was the height, bulk and scale of the proposed development. Mr Moody considered that the original proposal was a very good development for the reasons outlined in the Joint Experts' Report. Mr Moody particularly referred to the very favourable comments of the Council's SEPP 65 Panel and also noted that the adjoining residential area had the capacity under its current 2(c1) zoning to be potentially developed up to 3 storeys with an additional fourth storey by way of an attic or part storey. 28 Both planning experts agree that greater weight should be given to the likely scale of development contemplated under the 2(c1) zoning rather than the existing development. Mr Moody also considered that, as the site was at a prominent intersection, additional height was justified particularly in light of the favourable comments of the SEPP 65 Panel and a publication by the Urban Design Advisory Service entitled 'Mixed Use in Urban Centres'. 29 Ms Gordon disagreed, considering that the site was not located on a corner, but opposite an intersection at a low point as viewed from Old South Head Road and Christison Park and as such additional height was not warranted to provide for a corner treatment. Ms Gordon considered that the proposed northern facade required additional softening by the provision of indents in the northern facade and the provision of significant planter beds for mature trees and that the fourth floor required additional setbacks in order to make it appear as an architectural treatment of the building rather than an additional floor as viewed from the areas immediately surrounding the site. Ms Gordon considered these modifications were required to bring about a satisfactory development. 30 Following the recommendation of Ms Gordon, the applicant agreed to her amendments, which have led to the current amended proposal before the Court which is supported by both planning experts. 31 The Council's Design Review Panel has considered the application and had made a series of recommendations. These recommendations are now incorporated in the amended plans. 32 The Panel conclusion was that 'Given the design qualities, the Panel commends this proposal to the Council.' 33 Landscaping: Both planning experts agree that the existing development provides minimal landscaping and the proposed development represents an improvement of landscaping on the site, particularly on the eastern portion and on the rear southern boundary. Whilst acknowledging that the original proposal represented an improvement compared to the existing situation, Ms Gordon sought additional significant landscaping on the northern facade, which has now been incorporated in the additional plans before the Court. 34 Public Interest: There is only one current objection to the proposal and a point of objection relates to a perceived need for blinds on the proposed windows and a concern relating the treatment of the existing telecommunication towers. These matters are discussed above.

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35 Overall, the planning experts agree that the amended proposal is supportable particularly in terms of streetscape impact, which was the primary impact of concern between the experts. Ms Gordon considers that the provision of indents and significant landscaping and increased setbacks to the fourth floor renders the current amended proposal supportable. 36 The planning experts discussed a list of potential benefits arising from the proposal and they agreed as follows: The proposal represents a permissible mixed development in contrast to the existing prohibited development. The planning experts agree that this is a positive benefit. The proposal achieves the relevant objectives of the current zoning whereas the existing development does not. The proposal will achieve a compatible interface with the street by the provision of a coffee shop whereas the existing development does not. The proposal will contribute to the vitality of the neighbourhood centre and the amenity for users of the park. The proposal will improve landscaping on the site compared to the existing development, particularly in light of the amendments sought by Ms Gordon on the northern facade. The proposal represents an improved architectural presentation compared to the existing. There will be an improved acoustic environment subject to the agreed proposed conditions, which relate to the acoustic treatment and location of plant and equipment. There will be a substantial decrease in overlooking onto the adjoining townhouses to the south subject to the agreed proposed conditions relating to privacy measures. On this point, the planning experts noted that the existing large picture windows currently provided on the southern facade would be removed. The removal of the existing commercial kitchen facilities and its associated exhaust represents an improvement. There will be no additional unreasonable amenity impacts on adjoining properties. There may be an improvement in perceived and actual security of users of Christison Park by providing residential units overlooking the park.

At a glance

Court

Decision date

Before

Source

Judgment (109 paragraphs)

Parties

Cases Cited (1)