Findings
51The site is a large allotment, part of which contains a warehouse building of a height and scale that exceeds that of the surrounding residential area. The site is within a B4 zone, whereas the surrounding area is predominantly within a R2 zone under MLEP. Under Schedule 1 of MLEP, residential accommodation, as part of a mixed use development, is permitted on the site despite its general prohibition in the B4 zone. This recognises the redevelopment opportunities of the site for housing "given its proximity to retail and commercial services and public infrastructure and services".
52Objective O1 of the site specific controls in the Masterplan in Part 9.14.5.1 of MDCP seek "To provide planning provisions that encourage the former industrial property at 30 Alice Street to be redeveloped for mixed residential and employment uses". The Masterplan provides further detail to that in Part 5 of MDCP for a mixed use development with residential accommodation permitted under Schedule 1 of MLEP.
53The development controls for the site in both MLEP and MDCP permit a form of development, which is significantly larger than that of surrounding development. The key question before the Court is whether the proposal is consistent with the form of development envisaged by the planning controls, in particular the non compliance with the FSR control in cl 4.4 of MLEP.
54The further amended application proposes an above ground FSR of 2.036:1 (16,894.43sqm), which exceeds the FSR control in MLEP of 1.85:1 (15,351.115sqm). The additional GFA above ground is about 1,543sqm above the control of which about 632sqm is in the "mezzanine" level. Under the definition of GFA in MLEP, car parking in excess of the requirements of MDCP, is not excluded from GFA and therefore the FSR of the proposal is technically greater than 2.036:1. However, the experts have agreed that the parking should be provided in accordance with the rates in the Draft DCP. The proposal complies with these requirements and the experts agree that the departure from the FSR standard resulting from the GFA for car parking in excess of MDCP is acceptable.
55Clause 4.6 of MLEP permits exceptions to development standards in MLEP, including the FSR control. It is similar to an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) in that it is a precondition, which must be satisfied before the proposed development can be approved.
56Under cl 4.6(4)(a), consent must not be granted unless the Court is satisfied of two matters. Firstly, that the Applicant's written request has adequately addressed the matters required to be demonstrated in subclause (3). Secondly, that the proposed development will be in the public interest because it is consistent with the objectives of the FSR standard and the objectives for development within the B4 zone.
Objectives of the FSR standard in clause 4.4 of MLEP
57Clause 4.6(4)(a)(ii) requires satisfaction that the proposal is in the public interest because it is consistent with the objectives of the FSR standard before consent can be granted. The objectives of the FSR standard in cl 4.4 of MLEP are:
(a) to establish the maximum floor space ratio,
(b) to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas,
(c) to minimise adverse environmental impacts on adjoining properties and the public domain.
58The FSR above the maximum in cl 4.4 will add to the density and bulk of the development. The question is whether the development is of a building density and bulk that is consistent with the desired future character and meets objective (b). The desired future character for the Camdenville Precinct is set out in Part 9.14.2. The matters of relevance to the site are:
5. To preserve the predominantly low to medium density residential character of the precinct.
6. To ensure the provision and location of off-street car parking does not adversely impact the amenity of the precinct.
.........
8. To ensure orderly development on masterplan sites in accordance with the principles of the masterplan vision, including allotment amalgamations, where required, that are not detrimental to achieving the overall masterplan structure and achieve an efficient and high quality built outcome.
9. To facilitate the redevelopment of the underutilised industrial site at 32-60 Alice Street, Newtown for a mix of uses that will contribute to the character and diversity of the precinct.
59The controls in MLEP and in the Masterplan permit significantly greater density and bulk than the low to medium density residential character of the precinct. However, the predominant character of the precinct is preserved through the controls on surrounding sites, which generally limit height to 9.5m and FSR to 0.85:1.
60The Masterplan provides guidelines for the development of the site with greater density and bulk than its surrounding context. Through its controls such as number of storeys, setbacks and public open space it provides guidance on how the maximum FSR and height permissible under MLEP can be distributed over the site to achieve a building bulk, which responds to its context.
61The Masterplan limits the height of development to between five storeys and three storeys along Alice Street and Walenore Avenue and generally between three storey and two storeys along Pearl Street and Alice Lane. The development generally complies with the Masterplan controls and responds to its exiting context while providing greater height and density. The only area in dispute between the parties is whether the "mezzanine" level on the Alice Street building is appropriate.
62Mezzanine is defined in MLEP as:
Mezzanine means an intermediate floor within rooms
63The parties held different opinions as to whether the additional level is a "mezzanine". Whether it meets the definition or not, the bulk of the upper level has been minimised through its setbacks from the street frontage, the courtyard and pocket park. The level will not be seen from Alice Street and Alice Lane directly in front of the building, although it will be seen from longer views along Alice Street, and from the park opposite the site. However, it complies with the overall height limit in MLEP and will not present additional bulk to that of a roof structure. Ms Atwel did not identify any material impacts resulting from a building of five storeys plus a "mezzanine" or sixth storey, compared to a building of five storeys plus a roof. Her concerns centred on the numerical non compliance with the storey control.
64Council referred to PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355, which provides principles for FSR and building envelope, including that FSR should not fill a building envelope established by compliance with controls such as setback, landscaped area and height. However, in this case, the FSR does not fill the building envelope as it is below the height control in MLEP. Further, the Masterplan does not set maximums but requires that the development "must conform" to its envelope. A five storey commercial building would comply with the Masterplan but be of greater bulk than the residential component proposed. Despite the "mezzanine" level, the building bulk is consistent with the envelope and desired future character for the site established by the Masterplan.
65Exceeding the FSR control will result in a greater density and potentially a greater number of units, a greater number of people and a greater number of cars. However, the experts have not identified any material impact resulting from this increased density beyond those anticipated by the planning controls, other than the secondary driveway.
66The traffic experts agree that the traffic generation from the additional GFA and car parking will not significantly impact on the surrounding road network and measures have been introduced to minimise impacts on residential amenity. Nevertheless, for the reasons, which I have discussed above, the secondary driveway creates potential conflicts and should be deleted. The planning controls envisage a proposed increase in density and resultant traffic, which will impact on existing residential amenity, this level of impact is reasonable as it is anticipated by the planning controls. However, I do not accept that the additional impact, albeit a minor increase, is reasonable or in the public interest given that part of the desired future character is to ensure the provision and location of off street parking does not adversely impact on the amenity of the precinct.
67Subject to the deletion of the driveway, I accept Mr Chambers' opinion that the development would meet objective (b) of the FSR standard to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas.
68Although, not raised by the council, I note that the central courtyard and the Alice Lane buildings within the development are overshadowed by the development. The applicant has provided further solar access diagrams, which illustrate that the removal of the "mezzanine" level would not materially increase the solar access to these areas. The council considers that the development achieves acceptable solar access to the combined area of the courtyard and pocket park and therefore complies with Part 2.7.5.2 of MDCP. Although, I consider the lack of solar access to the courtyard to be a negative feature of the development, it would not warrant refusal of the application given council's submission that it complies with the DCP controls for solar access.
69As discussed above, MLEP permits greater density and bulk than the low to medium density residential character of the surrounding area, which will result in impacts on the surrounding area and within the development. However, additional impacts are to be expected when a higher density development is inserted into a lower density context. The experts have not identified any adverse impacts beyond those which are anticipated by the planning controls, other than the secondary driveway. The proposal has therefore sought to minimise adverse environmental impacts on adjoining properties and the public domain and therefore, subject to the deletion of the secondary driveway, meets objective (c) of the FSR control.