Al Maha Pty Ltd v Marrickville Council

Land and Environment Court (NSW)|2015-11-05|Before: Mr P

Solicitors: GADENS (Applicant) Maddocks Lawyers (Respondent) File Number(s): 10433 of 2015

Introduction

This appeal was lodged against council's refusal of a development application for a new 6th storey element containing 10 residential units above an approved 5 storey building that is presently under construction, together with 10 additional car parking spaces. The site is on the corner of Alice Street and Walenore Avenue, Newtown.
The application to increase the height and density of the development initially proposed both a 6th and 7th storey. However this was amended to delete the 7th storey following a Section 34 Conference, which was terminated. As I conducted the s34 Conference, the parties agreed to my determination of the subject appeal and that matters discussed at the s34 Conference could be considered.
Consequently for the appeal, a number of detailed contentions were identified, which can be summarised as follows: 1. Excessive height and scale of the building in the context of the surrounding development. 2. The proposal does not comply with the height and floor space ratio (FSR) development standards in the Marrickville LEP. 3. Insufficient building separation. 4. Internal amenity of some of the proposed units. 5. Access and car parking. 6. Urban design considerations. 7. Public interest matters.

Background

The Statement of Facts shows a detailed history of the development of the site, which summarised as: 1. In June 2012 DA No 201200225 was lodged seeking the demolition of a large building on the site and the erection of a mixed use development containing 7 retail tenancies, 206 residential dwellings and 163 car parking spaces, associated landscaping, drainage and related works. 2. In August 2012 an appeal was lodged against the deemed refusal of the application and the applicant was granted leave to rely upon amended plans. 3. On 26 April 2013, the NSWLEC conditionally approved the mixed use development containing 174 residential units, 6 ground level commercial tenancies and basement parking for 177 cars. (Al Maha v Pty Ltd v Marrickville Council [2013] NSWLEC 1072). 4. Following 3 subsequent modifications and agreement by the parties, the existing development under construction allowed a mixed use development with 9 commercial/retail tenancies, 203 dwellings, off street parking for 187 vehicles and associated works. 5. This approved development is spread over this relatively large site in a number of variable height buildings generally as shown in the Masterplan for the site. 6. The subject building is designated as 'Building A' and its existing approval is for 5 storeys and a height.

The proposal

The current proposal is for: 1. An additional 6th storey component to Building A on the north eastern corner with a length of approximately 20m to Alice Street and 52m to Walenore Avenue. The proposal provides for a stepping down of the 6th storey element to the existing approved 3 storey height along Alice Lane. 2. An increase in the height of the building at the NE corner to approximately 20.4m. 3. An additional 10 residential units comprising 3x1 bedroom, 2x 1 bedroom + study and 5 x 2 bedroom units. 4. An additional 10 car parking spaces in the basement.

The site

The Site is comprised of one allotment being Lot 203 in Deposited Plan 772164 and seven strata lots being Lots 1-7 in Strata Plan 32809 (known as No. 32-72 Alice Street, Newtown). It is bound by Alice Street to the north, Walenore Avenue to the east, Alice Lane to the south, and Pearl Street to the west.
The Site has a generally rectangular shape and has a northern frontage of 121.25m to Alice Street, and an eastern frontage of 61.13m to Walenore Avenue. The Site also has frontage of approximately 64.1m to Pearl Street.
The Site has an area of 8,297sqm and slopes down from the south-east to the northwest, with an overall fall of approximately 6 m.
The locality is characterised as residential in nature, with mixed uses and retail uses further to the east along King Street (140 m away) and to the west along Edgeware Road (450 m away). The surrounding built form, across all streets to which the site has frontage, is predominantly single storey dwellings, with some interspersed 2 storey dwellings and some low scale residential flat buildings.
Properties on the northern side of Alice Street have a mix of residential uses (R1 General Residential, R2 Low Density Residential, R3 Medium Density Residential, and R4 High Density Residential), while properties on the southern side of Alice Street and properties to the south of the subject property are generally zoned R2 Low Density Residential.
The built form and character of the area generally reflects the applicable land zoning, which is predominantly Low Density Residential. The Site is relatively large compared to neighbouring and surrounding sites, particularly to the south, east and west. There is a marked change in scale between the subject site and the surrounding area.

Planning controls

The following controls apply: 1. Environmental Planning and Assessment Act 1979; 2. Environmental Planning and Assessment Regulation 2000; 3. Heritage Act 1977; 4. Contaminated Land Management Act 1997; 5. National Parks and Wildlife Act 1974; 6. Disability Discrimination Act 1992; 7. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; 8. State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65). 9. State Environmental Planning Policy No. 55 (Remediation of Land) (SEPP 55)
The relevant local plan is the Marrickville Local Environmental Plan 2011 (MLEP 2011), under which the site is zoned B4 - Mixed Use and the proposed development is permissible with development consent. Cl 2.3 deals with the zone objectives and 2.3(2) requires the consent authority to have regard to the objectives for development in a zone when determining a development application.
Part 4 of the MLEP contains the principal development standards that apply to the site, particularly a maximum building height of 20m and a maximum FSR of 1.85:1. Clause 4.6 of the LEP allows exemptions to the development standards as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (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. (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
Clause 5.6 allows height variations on the following basis: Architectural roof features (1) The objectives of this clause are as follows: (a) to permit variations to maximum building height standards for roof features of visual interest, and (b) to ensure that roof features are decorative elements and that the majority of the roof is contained within the maximum building height standard. (2) Development that includes an architectural roof feature that exceeds, or causes a building to exceed, the height limits set by clause 4.3 may be carried out, but only with development consent.
Also applicable are the controls in the Marrickville Development Control Plan 2011 (DCP) under which the site is located in the Camdenville Planning Precinct (Precinct 9.14). Part 9 of the DCP describes the existing character within the strategic context and lists 9 points for the desired future character, of which the following are specifically relevant: 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 outcome. 9. To facilitate the redevelopment of the underutilized industrial site at 32 - 60 Alice street, Newtown for a mixed of uses that will contribute to the character and diversity of the precinct.
The site specific planning controls for 32 -60 Alice Street Masterplan include: Objectives 1 To provide planning provisions that encourage the former industrial property at 30 Alice Street to be redeveloped for mixed residential and employment uses. The redeveloped site must incorporate new publicly accessible open space on the Alice Street frontage that functions as a through site link to Alice Lane, neighbourhood shops and services and residential dwellings. 2 To allow consideration for potential live/work or SOHO style accommodation fronting Little Commodore Street as part of any redevelopment. Building height C2 The height of proposed buildings must conform to the control diagram(s) in Figures (14.1a) and (14.1b). The height is expressed in number of storeys. FIGURE 14.1a

The evidence

Detailed evidence was presented by way of joint reports from: 1. Mr J Perica; Respondents consulting planner (Ex 3) 2. Mr R Chambers; Applicants consulting planner (Ex 3) 3. Mr C McClaren; Respondents traffic consultant (Ex 4) 4. Mr R Nettle; Applicants traffic consultant ( Ex 4)
Several objections were made by residents concerning overdevelopment of the site, poor design, overbearing impacts, loss of privacy, exacerbation of existing traffic and parking problems and incompatibility with the existing low density area. These concerns were addressed during the proceedings.
It is apparent from the evidence that the main issues identified concern the proposed height, bulk and scale of Building A located at the corner of Alice Street and Walenore Avenue. The resolution of this issue ultimately requires consideration of the cl 4.6 written requests for flexibility with the height and FSR development standards.
But in this case Mr Pickles made submissions that the following planning principle on FSR and building envelope is also relevant and accordingly I have firstly considered its application.
In the matter of PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355 Commissioner Tuor dealt with similar issues and developed the following planning principle for Floor Space Ratio and Building Envelope. At para 46 and following she stated: 46. The key difference between the parties was whether the building envelope established the total floor space limit for the site. As I understand, Mr Hemmings' submission for the applicant is that, provided the building envelop does not have an adverse impact on the amenity of the area and objectives of the FSR standard are met, then the FSR performance criteria could be exceeded. Recent development approved in the area indicated that council considered that the bulk of building envelopes, which contained greater FSR than that permissible within the zone were appropriate and that this determined the desired future character. 47. While Mr Hemmings' submission is persuasive, I do not accept that the FSR Performance Criteria has no role to play and that the envelope can be filled with floor space. The experts do not agree on the building envelope particularly the front setback and roof form. There are parts of the envelope that are not filled and there are also parts of the envelope that are exceeded. Most of the evidence concentrated on whether the breaches to the envelope resulted in an acceptable bulk. This is not the issue but rather whether the bulk of the building is consistent with the existing and desired future character of the area and has acceptable amenity impacts and therefore meets the FSR objectives. In assessing this, the bulk and impacts of a 1.5:1 development standard cannot be ignored. Planning Principle Floor Space and Building Envelope 48. The question of whether a building envelope can be filled when the FSR control would produce a smaller building is one that arises from time to time in Court proceedings. The following planning principles are therefore of assistance: (i) FSR and building envelope controls should work together and both controls and/or their objectives should be met. (ii) A building envelope is determined by compliance with controls such as setback, landscaped area and height. Its purpose is to provide an envelope within which development may occur but not one which the development should necessarily fill. (iii) Where maximum FSR results in a building that is smaller than the building envelope, it produces a building of lesser bulk and allows for articulation of the building through setbacks of the envelope and variation in building heights. (iv) The fact that the building envelope is larger than the FSR is not a reason to exceed the FSR. If it were, the FSR control would be unnecessary.
Whilst the planners did not address this planning principle, nevertheless I think it has some relevance in this case. The relevant controls allow for a 1.85:1 FSR and a building height of 20m, with the qualification in the MDCP Masterplan that there should be a maximum height of 5 storeys.
The planners addressed the height control and despite some minor differences on the method of measurement, agreed that whilst the overall height of the 6 storeys exceeds the Masterplan's designated height of 5 storeys, nevertheless the overall height basically complies with the cl 4.3 LEP 20m development standard. The exceptions are the architectural feature on the corner, which the planners agree is acceptable in terms of cl 5.6 of the LEP. I accept this agreement.
The other minor non - compliance concerns the top section of some of the upper level of the 1.6m privacy screens on the private roof terraces for which a section 4.6 written request has been made. Mr Chambers says that they are minor non - compliances at the northern end of the roof and as they are generally well setback from the periphery of the building, they will not result in any adverse environmental impacts. Accordingly he considers this issue is satisfactorily resolved.
Mr Perica agreed that the height non - compliance was minor and that considered alone, it would not cause any unreasonable impacts. However he nevertheless considers it a negative aspect of the proposal, particularly as the proposal adds the 6th storey, which is non - compliant with the Masterplan intent. He says that the cumulative effect of a number of non-compliances should be considered in order to assess whether there is a better outcome.
According to cl 4.4 of the MLEP, the FSR development standard allows a maximum FSR of 1.85:1. The original approval for 174 units had a FSR of 2.036:1. The subsequent modifications have resulted in the existing development having a FSR of 2.05:1. Approval of the current proposal would result in a FSR of 2.14:1 and the applicant has submitted a cl 4.6 written request to deal with this.
Mr Chambers considers that the proposed additional FSR of 0.09:1 (4.3%) is acceptable because it is substantially contained within the allowable 20m height limit and it is totally within the approved Building A footprint. Accordingly he says that this additional floor space will blend seamlessly with the storeys below and will not be prominent or overbearing.
Consequently, Mr Chambers says that as the additional storey will accommodate 10 new units that can provide living opportunities for 10 households in an accessible location with high amenity, then a better planning outcome is achieved, particularly as he does not consider there will any unreasonable impacts arising.
Furthermore, he says that insofar as the FSR standard has already been varied for the approved development on this site, this is a demonstration that the FSR restriction of 1.85:1 warrants flexibility in its application on this site.
Applying the PDE planning principle, I firstly accept that the combined effect of both the height and FSR should be considered together because they determine the envisaged building envelope for this site so as to achieve the desired future character of the area, which provides an appropriate transition in built form and land use intensity so as to minimise adverse environmental impacts.
Whilst I accept the planner's evidence that the height non - compliance is of a relatively minor nature, nevertheless the designated building envelope comprises both the building height and allowable FSR standards. On this basis a further exceedance in the order of 4.3% (738.2 sqm) above the existing non - complying (FSR) building is proposed. Mr Chambers supports the infill 6th storey component on the basis that the existing approval demonstrates that further flexibility can be allowed and as there are no adverse impacts and it will provide an additional 10 new units.
However I do not accept that this approach adequately satisfies principle (ii) because the objective of the FSR standard is to control building density and bulk over the total site in order to achieve the desired future character. Even though there is some availability of height under the 20m limit both at the subject and other locations as indicated on the building elevations, when additional FSR limitation is considered, I do not consider this application reasonably satisfies this principle.
Principle (iii) refers to the combined effect of the relevant controls to define the building envelope whereby sometimes the maximum FSR may not be achieved. In this case, the proposed FSR considerably exceeds the FSR standard and would result in a building of increased bulk, which can be observed from vantage points in Alice Street and Walenore Avenue. The proposal does not include any significant setbacks or articulation to minimise the presentation of the 6th storey that does not comply with the Masterplan, notwithstanding that the visual and associated amenity impacts may be minimal.
Consequently, I agree with Mr Perica that the approval would not lead to an enhanced environmental or "high quality built outcome" as listed in the s 9.14.2 desired future character statement. Therefore this principle is not reasonably satisfied in my assessment.
By reference to principle (iv), I consider that the FSR development standard has particular work to do in this case in order to achieve the site specific outcomes detailed in the Masterplan, particularly the desired future character. Accordingly, I do not fully accept Mr Chambers approach that the numerical FSR is a "reference point" in this matter.
I understand that the existing exceedance of FSR in the current approval was allowed and it expanded the building envelope. But that still resulted in the form of a complying 5 - storey building that was consistent with the Masterplan. However, I do not consider that the proposed additional floor space to further expand the building envelope is reasonable where a more bulky 6 storey form of building is proposed.
In this regard I rely on Mr Perica's evidence that the desired future character is more likely to be achieved by closer adherence to the FSR standard, which prescribes a smaller building with less floor area, rather than treating the development standard as a reference point. Therefore I do not consider that this proposal is consistent with principle (iv).
Interestingly, some references were made to the Residential Flat Design Code (RFDC) contained in Ex. 2. It deals with the primary development controls including building height, depth, setbacks and floor space that prescribe the building envelope to achieve the desired future character of the area. The RDFC states: Floor space ratio (FSR) controls provide a guide for developers, council staff and the community as to the allowable densities for an area The FSR is the maximum capacity of a building and the accepted currency for development A key benefit of FSR is its usefulness in determining and controlling the maximum amount of floor space yield However, FSR should not be the sole determinant of future built form, it should be linked with all other building envelope controls to support the desired urban outcome Once established, FSR is an absolute maximum, which may not be wholly achievable on all sites due to urban design considerations In a new urban area or where an existing area is undergoing change, FSR controls should be set after designing and testing building envelopes, not before
It seem to me that this explanation is relevant because the FSR is established as a development standard with a maximum of 1.85:1 and notwithstanding that parts of the building envelope may allow infill other constraints may preclude this being reached in order to achieve the desired future character.

Cl 4.6 written request

The cl 4.6 written request deals with both the height and FSR variations concurrently. For this determination I follow the approach taken by Brown C in Antoniades Architects Pty Ltd v Canada Bay Council [2014] NSWLEC 1019 wherein he stated: 31. Clause 4.6 of MLEP 2011 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). 31 In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible

Zone objectives

The Zone B4 Mixed Use zone objectives are: (i) To provide a mixture of compatible land uses. (ii) 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. (iii) To support the renewal of specific areas by providing for a broad range of services and employment uses in development which display good design. (iv) To promote commercial uses by limiting housing. (v) To enable a purpose built dwelling house to be used in certain circumstances as a dwelling house. (vi) To constrain parking and restrict car use.
Mr Chambers written request concludes that the proposed development is relevantly consistent, and not otherwise consistent, with these objectives in that: 1. The proposed ground level commercial tenancies with residential units above are no less compatible as a consequence of the additional storey; 2. Building A is part of an integrated design which mixes residential units with ground level retail suites primarily along the Alice street frontage and the site is in an accessible location; 3. The proposal forms part of the urban renewal of an entire block in a development displaying good design; 4. The proposal satisfies Council's (constrained) parking requirements.
Whilst Mr Perica expressed concern about the way the objectives were treated in the written request, he nevertheless took the view that the proposal is not inconsistent with the overall objectives of the zone.
However I have some concerns regarding the consistency with Objective (vi) because the subject neighbourhood contains many single and 2 - storey Victorian and Federation houses that have no off street parking. According to the resident's evidence, there are regular traffic delays and congestion and significant competition for on - street car spaces, which is regulated to some extent by a resident parking scheme. They consider the additional 10 units and associated parking in the building together with the likely influx of visitors parking will exacerbate current traffic and on - street parking issues.
I accept that there are parking issues in this immediate area and have reservations relying on Mr Chambers opinion that because the proposal complies with the MDCP generic parking controls, the objective is achieved. These generic controls apply to the whole municipality on the basis of three different areas, namely 'Areas 1,2 and 3'.
But zone objective (vi) is specific to the subject site and does not apply to any of the adjoining zones listed in para 10. It seems to me that the intent of the zone objectives is that whilst it allows suitable developments with complying parking, when a larger development with excessive FSR is proposed, its suitability should be carefully assessed.
The objective to "constrain" means to force or compel a course of action to be followed, which is to limit parking and restrict car use. But this development proposes an additional 10 units which increases car parking and car use in the area by the introduction of 10 additional car parking spaces, and facilitation of an incremental increase in car usage by residents and visitors, which is not consistent with this zone objective. In these circumstances I do not consider this is a suitable development and consider it is antipathetic to this objective.
The traffic joint report provides no assistance in addressing this zone objective, instead focussing only on basic traffic management for the new development. Whilst this finding would lead to the refusal of the development application, I have nevertheless considered the other consideration matters.

Height standard objectives.

The objectives of the cl 4.3 Height of buildings standard are: (1) (a) to establish the maximum height of buildings, (b) to ensure building height is consistent with the desired future character of an area, (c) to ensure buildings and public areas continue to receive satisfactory exposure to the sky and sunlight, (d) to nominate heights that will provide an appropriate transition in built form and land use intensity. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. NOTE: The designated maximum height is 20m
The non - complying height elements refer to an exceedance of approximately 0.4m above the designated 20m height standard for the length of the 6th storey. Mr Chambers written request refers to the desired future character statement in Section 9.14.2 of the MDCP, particularly points 8 and 9. Accordingly, he says that the proposal is consistent with the desired future character because in relation to Objective (b):

it has no effect on the preservation of identified period buildings within the precinct;
the proposal relates to Building A on the corner of Alice Street and Walenore Avenue and will not have an impact on the listed heritage item at 63-69 Alice Street.
this corner of Alice Street and Walenore Avenue, for around 45 years, accommodated a building of greater scale than Building A, even with the additional level now proposed;
there will be no adverse impact on any significant streetscape or public domain elements within the precinct; that, however, does not mean that the character of the precinct will not be preserved if an additional level is put on Building A;
the site is zoned and approved for relatively high density, mixed use development which is intentionally different to the predominantly "low to medium density residential" character of the precinct;
the parking on the site complies with the DCP requirements, which are highly constrained and the DA is accompanied by a detailed traffic and parking assessment report which concludes that the additional off-street car parking associated with the proposed additions will not adversely impact the amenity of the precinct;
it does not diminish the approved scheme, which is for the orderly redevelopment of a masterplanned site and a high quality built outcome; and
the additional building height (and additional GFA associated with the increased height), will form part of the redevelopment of the "underutilised industrial site" and not diminish the character and diversity of the precinct.

In relation to Objective (c):-

the shadow impacts of the additional level which are presented in detail in the set of drawings, are minor, are not unreasonable in the context that the height of Building a with the proposed additional level is well within the 20-metre height limit at its southern end and is lower in height than the former building which occupied this part of the site.

In relation to Objective (d):-

Building A, with the additional storey, still represents an appropriate transition in built form and land use intensity, noting in particular the minor exceedance of the 20-metre height limit in the LEP;
Building A will still have a satisfactory relationship to other nearby buildings; and
Building A with the proposed addition will not be out of place, particularly having regard to the greater scale of the former building it has replaced.

Mr Chambers written request then says that compliance with the height standard is unreasonable and unnecessary on the following basis:

the characteristics of the site (i.e. large size, single ownership, surrounded by streets are such that it can accommodate the additional height now proposed without unreasonable impacts on adjoining land;
the development as a whole meets the objectives of the building height development standard, as detailed above in Section 4.1.2;
the proposal does not affect the height of the approved buildings along Alice Lane or Pearl Street (e.g. the buildings most sensitive to potential adverse impacts) which are well below the building height development standard; and
no unreasonable or unacceptable impacts will arise from the proposed non-compliance with the "building height" development standard.

However Mr Perica does not support the written request because while large buildings are contemplated on the site, he says that the proposal does not comply with core aspects of the LEP and DCP, particularly the requirement for orderly development on masterplan sites. Notwithstanding the minor numerical non - compliances, he does consider the proposal makes a positive contribution to the character of the precinct, instead it detracts from it.
Having considered these details I note Objective (a) and am satisfied that determinative weight be given to the specified 20m height standard rather that the 5 - storey limit in the MDCP. Regarding the other objectives, even though the additional 6th floor is proposed, the exceedance of the standard is minor when considered alone, I accept that the height is generally consistent with the desired future character, it will not materially affect other buildings exposure to sky and sunlight and it should provide a reasonable transition in built form.
Consequently I am satisfied that the cl 4.6 written request concerning the variation to the height standard demonstrates that compliance with the standard is unreasonable and unnecessary and that there are sufficient planning grounds to allow the proposed flexibility.

FSR development standard

The more significant non - compliance is with the FSR development standard contained in cl 4.4 of the MLEP as follows: 4.4 Floor space ratio (1) The objectives of this clause are as follows: 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. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. NOTE: The designated maximum FSR is 1.85:1 for this site.
Insofar as the FRS development standard allows for a ratio of 1.85:1, the existing approval has a FSR of 2.05:1 and the proposal is for 2.14:1. In response to the proposals consistency with the FSR standard, I note that the written request states that no discussion of Objective (a) is required other than to observe that the 1.85:1 FSR is one that can be varied pursuant to Cl 4.6, as has already occurred.
The written request states in relation to Objective (b): ● requirements for the siting, configuration (i.e. shape), setbacks and separation of buildings on the site are set out in Clause 9.14.5 of Marrickville DCP: the approved development displays a very high degree of conformity with these requirements and will continue to do so if an additional level is put on Building A; ● the requirements referred to above, along with the B4 Mixed Use zoning of the site and the mix of uses permissible therein, establish its desired future character which is quite different to, but nevertheless compatible with, the character of surrounding land: the proposal is highly consistent with this desired future character and remains so with the proposed addition on Building A; ● in this regard, it is relevant to take into account that the zoning of the site, B4 Mixed Use, permits commercial premises, light industries, registered clubs and various other non¬residential uses which would all have typical floor-to-floor heights significantly greater than would be the case for a residential flat building, meaning that the storey control in the DCP (relevantly 5 storeys on this part of the site) does not equate to a given or precise height outcome. ● the previous four-storey building on the site is a good case in point - it was greater in height (with 4 storeys) than Building A will be with 6 storeys; ● a new 'commercial premises' or light industrial building would typically have floor-to-floor heights of between 3.6 - 4.0 metres, so a five-storey 'commercial premises' or light industrial building would be likely to have a height of 18.0 - 20.0 metres, excluding roof features; ● as additional floor space can be included in the approved development (over and above he 1.85:1 limit) without unreasonably or unacceptably adding to the bulk of buildings on the site (as anticipated by the DCP), then the objective is satisfied; ● in the event it is argued that compliance with the storey control in the DCP results in a lesser bulk, it can reasonably be said that there is no limitation in the DCP on the floor-to-floor height of a storey, therefore there is no virtue in mere compliance/satisfaction of the storeys control in the DCP; and ● the proposed additional GFA is accommodated in a sixth storey on a high-quality building, as part of a group of high-quality buildings the size and scale of which are consistent with the desired future character for this large site.
In relation to Objective (c) the written request is supported on the basis that: ● there are no adjoining properties as the site is surrounded by public roads; ● properties on the opposite sides of Alice Street, Walenore Avenue and Alice Lane will not be subject to any unreasonable adverse environmental impacts as a result of the additional storey on Building A as it has been configured so as to only result in very limited additional overshadowing; ● the relationship of, and impacts arising from, approved Building A to/on the public domain will remain much the same; and ● the proposed additional GFA does not give rise to excessive or unacceptable traffic generation, primarily because the parking rates permitted by Council are so constrained.
From this assessment, Mr Chambers written request considers that compliance with the FSR development standard is unnecessary and unreasonable because: ● the characteristics of the site (i.e. large size, single ownership, surrounded by streets) are such that it can accommodate the additional GFA now proposed without unreasonable impacts on adjoining land, just as the approved development, which already exceeds the FSR standard, has no such unreasonable impacts; ● the proposal, and the development on the site as a whole, meets the objectives of the FSR development standard, as detailed above in Section 4.2.2; ● the proposal does not conflict with the building location and building separation requirements in the Marrickville DCP; and ● the proposal will have no unreasonable or adverse impacts on the perceived bulk or scale of the approved development; and no unreasonable impacts arise from the non-compliant GFA
The written request then submits the following environmental grounds to justify contravening the development standard: ● the FSR standard has already been contravened on this site by the approved development; ● whereas the FSR standard is 1.85:1, the approved development on the site has an FSR of 2.05:1; ● this is, therefore, a site on which it has already been concluded that the FSR standard can be contravened in accordance with the relevant provisions of Clause 4.6; ● the additional GFA and FSR which are proposed on the additional level are wholly within the 20-metre height limit - only the top of the architectural roof feature adjacent to the Alice Street frontage and the tops of certain privacy screens for the roof terraces exceed the 20-metre height limit; ● the additional level is on a part of the site which for 5decades was occupied by a taller, wider, bulker building (than Building A with the proposed addition), which is likely to have been a relevant factor in determining the 20-metre height limit on the site as a whole when Marrickville LEP 2011 was made; ● the additional GFA and FSR do not give rise to inconsistencies with the objectives of the FSR standard insofar as they apply to this site; and ● the environmental impacts of the additional GFA/FSR are minimal. Additionally, the site is within an area which is close to employment, education and retail opportunities, and which is well served by public transport. It is imperative that the site be put to as efficient a use as possible, consistent with the objectives and requirements of SEPP 32. The proposal will result in no significant adverse environmental impacts. It will augment the approved development of which it forms part to deliver a well-designed, high-quality, predominantly residential scheme which will provide new residents with excellent amenity without unreasonably diminishing the amenity of existing residents. The inherent characteristics of the site, including its size, topography, availability of services, surroundings proximity to facilities and services including public transport, shops, schools and other activities, make the site eminently suitable for implementing urban consolidation to the fullest extent practicable. There are no unacceptable or unreasonable environmental impacts associated with the further non-compliance with the FSR development standard. Having regard to the above, it can be concluded that not allowing further non-compliance with the FSR standard would be unreasonable and unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the further non¬compliance and that the proposal which gives rise to the further non-compliance is in the public interest because it is consistent with the objectives of both the FSR standard and the B 4 Mixed Use zone.
However Mr Perica disagreed with Mr Chambers because: 1. The size of the site is large and is surrounded by roads. A large site presents opportunities, particularly to distribute bulk where it may have less impacts. However, a large site can also magnify height and scale of buildings. A FSR of 1.85:1 on a small site is much more likely to have less height and bulk than a building on a large site where height is aggregated into larger buildings. 2. The rationale that it would be unreasonable to require compliance with the FSR standard as the approved building has already exceeded the FSR is not supported. To the contrary it is his view that for a building which already exceeds the FSR, very close attention should be given to any further non-compliances (especially where the proposal exceeds other LEP or DCP controls). This is a different point to it being literally accepted that requiring compliance with the 1.85:1 standard would be unreasonable as the approved development already exceeds 1.85:1. 3. The roads around the site do not account for or diminish the significant discordant nature of the proposed height and bulk relative to the scale of buildings in the surrounding area, which is being made more discordant by the proposal and proposed FSR (and height) non-compliance. 4. The additional bulk is being added to a visually prominent and sensitive part of the site in terms of the relationship with surrounding land. 5. The proposal will have an adverse impact on the perceived bulk and scale of the development and its scale relationship and transition with surrounding development (within the site and beyond). 6. The height of proposed Building A combines with its long length and overall mass to detract from the setting of the surrounding area. 7. While he agrees with the statements about general compliance with the building location controls in Marrickville DCP 2011, and says buildings need to be considered three dimensionally, and the additional bulk and height of the proposal changed the relationship with surrounding buildings and open space, including on the site, resulting in additional adverse impacts. 8. The most sensitive portion of the site, in terms of the visual height and scale relationship with surrounding land/development is exactly where the additional height is proposed. This is because of the views to the site from surrounding streets, the predominantly single storey attached dwelling nature to the north-east and east of the site, the building being located on a corner and the width as well as height of Building A. 9. The variation request has failed to demonstrate the objectives of Clause 4.6 will be met.
Having considered these opinions I am satisfied that objectives (b) and (c) are the most critical in this case. But the assessment of these in the written request for the separate development standards has been somewhat complicated by the intermingling of reference to both standards.
As the written request relies to some extent on the absence of adverse environmental impacts, I also consider it relevant to consider the long standing approach adopted by Cripps J in Hooker Corporation v Hornsby Shire Council (unreported, 2 June 1986) in considering a SEPP 1 Objection as follows: … it is now established that it is not sufficient to merely point to what is described as absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a planning purpose. … it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act.
Returning to the assessment framework outlined in para 41, the FRS control is an important control for establishing the desired future character. The FSR deals with the prescribed amount of floor space and consequential bulk and scale of buildings on a numerical basis so as to achieve the desired future character. Accordingly, I do not consider the written request demonstrates reasonable consistency with objectives (b) and (c) because: 1. I accept that the FSR numerical development standard of 1.85:1 has a planning purpose so as to achieve the desired outcome in the form and scale of buildings and impact on the neighbourhood. 2. Even though the form, setbacks and separation of the proposal is similar to that designated, nevertheless the objective is for a smaller building envelope resulting commensurate impacts. 3. In the subject context, I give little weight to the references to the building height variations including that of the previous industrial building on the site because the density controls envisage a smaller scale and building density. 4. The submission that because the approved development includes additional floor space over the standard, then the standard has been abandoned and more floor space can been added, does not set a precedent that guarantees further approvals. As stated previously, I consider the additional (non - complying) floor space for the 10 units and associated car spaces is not consistent with the zone objectives. 5. Whilst the written request is that there will be no adverse impacts on neighbouring properties except limited overshadowing, I nevertheless consider that the additional 6th storey will be observed from various places in the public domain and Mr Perica and many of the residents consider this will have overbearing impacts relative to the development standard outcome.
With regard to the consideration of the proposal's consistency with objective (b), it seems to me that the written request relies significantly on the lack of environmental impacts and the achievement of a satisfactory qualitative character outcome. Based on the Hooker authority, I give this diminished weight. Also, I consider that reference to the previous building that was demolished should be given little weight considering the current development standard envisages a different, smaller level of building density.
With regard to objective (c), it seeks to minimise adverse impacts. As previously stated, I consider the additional floor space for the 10 units and parking will intensify parking and access issues in the public domain as stated by the residents. I agree with Mr Perica's opinion that the written request has not adequately demonstrated reasonable consistency with the FSR objectives.
The third precondition for the written request is that there is a demonstration that compliance is unnecessary and unreasonable. I do not consider the point that the character of the site justifies the degree of flexibility now sought. These facts were known and presumably used to set the FSR standard for the building envelope to achieve the desired future character. Again I rely on the previous authorities that lack of environmental impact does demonstrate that the compliance is unnecessary or unreasonable.
On the contrary, if the question is asked whether a development which complies with the development standard is unreasonable and unnecessary, then the answer would be negative.
With regard to the fourth precondition, I have considered the points in the written request that the development standard has been previously exceeded, that the proposal is smaller than the previous building on the site and that the environmental impacts are minimal. However taking into consideration the combination of development standards and the provisions of the Masterplan, I do not consider the that there are sufficient planning grounds to support the request so as to result in a better community outcome. I rely on Mr Perica's opinion that the written request should not be supported and accordingly the application should fail on this basis. If however the written request was otherwise determined, I have also considered the merits of the other issues raised in the appeal as follows:

Building separation

This issue concerns the building separation relationships set out in Figure 14.1A in Part 9.14 of the MDCP, prescribes 5 storeys for Buildings A, B and C. However Mr Chambers says that as the RFDC recommends a separation distance of 18m, the additional storey is acceptable.
Mr Perica's particular concern is with the separation between the balcony of Unit B/5.08 and Unit A/5.10, which have a minimum separation of 11.5m between parts of their balconies. However after discussions between the planners I understand that this issue can be resolved with the provision of screens on the respective balconies but this results in a compromised level of amenity.

Internal amenity

This issue concerns the overall unit mix and the potential amenity of Units A 5.05 and A5.10, which are designated as 1 bedroom + study, because the designated studies have no wall windows except for a clerestory 'popup' window. Consequently, Mr Perica expressed concerns that these study rooms will have poor amenity and are likely to be used as bedrooms, which would be unsatisfactory. Insofar as the Mr Chambers proposes that conditions of consent could be imposed to require the 'study' to be exclusively used for that purpose, Mr Perica expressed reservations about this achieving outcome. He considers this design element a negative aspect of the proposal.

Unit mix

This issue was raised because when the unit mix for the additional storey is combined with the approved development, the whole development would provide the following: Proposed Approved Control (i) Studio - 15 7.0% 7.4% 5 -20 (ii) 1Br (incl. 12x1Br +study) 93 43.7% 43.3% 10-40 (iii) 2Br (incl. 4x2 Br+ study) 87 40.8% 40.4% 40 -75 (iv) 3Br or larger - 18 8.5% 8.9% 10

Mr Chambers says that the unit mix is not significantly different to the approved mix and it includes a broad range of adaptable units in the overall development. As all the proposed units will have a high level of amenity, he considers this unit mix is acceptable.
Against this Mr Perica considers that the proposed unit sizes represent a compromised outcome in terms of the high quality outcome envisaged by SEPP 65 and the RFDC.

Access and car parking

This contention concerns the adequacy of the 2 way access to and from the site, provision of on-site parking spaces, loading bays arrangements and internal design of the car park. These issues were addressed by the traffic consultants who agreed that: 1. The driveway is now adequate for B99/B85 Design Car access in respect of AS2890.1 - 2004 2. Access is now adequate for a 9.54m refuse truck or 2 SRV's in accordance with AS 2890.1 2002. 3. The island now permits 2 - way passing.

Conclusion

Having carefully considered the evidence including the objections, the submissions and undertaken a view, it is apparent from the evidence that the main issue in this matter concerns the height of the building and the merits of the additional bulk and scale of the development if the additional 6th storey is permitted at the relatively prominent corner of Alice Street and Walenore Avenue, notwithstanding that the building scales down from this corner to the approved 3 storey level at Alice Lane.
However the proposed 6th floor breaches both the building height and FSR development standards, which I have previously addressed. Clause 2.3 (2) of MLEP requires the consent authority to have regard to the zone objectives and consequently I do not consider this variation is consistent with the zone objective "to constrain parking and restrict car use".
My assessment of the cl 4.6 written request for flexibility in the application of the FSR development standard is that the proposal is inconsistent with zone objective "to constrain parking and restrict car use". As I consider it is antipathetic, therefore the written request is not be supported, resulting in the refusal of the application.
Furthermore, I think that the introduction of the 6th storey level introduces other undesirable amenity impacts. The separation distance and alignment between balconies Units B/5.08 and A/5.10 is such that the balconies have to be screened, which is a negative aspect. I agree with Mr Perica that the internal layout of Units A5.05 and A5.10 with the "enclosed" study rooms consumes some of the non - complying floor space, which is of poor design and in reality sets up a situation where these rooms could likely be used for other purposes, which would be a negative outcome.
In summary then, it seems to me that the Mr Chambers relies significantly on his view the as the increased floor space will not result in any significant impacts then it should be permitted. But I consider the approach taken by Cripps J in Hooker Corporation that it should be assumed that a development standard has a purpose and the absence of environmental harm is insufficient to found an objection. Accordingly, the written objection does not demonstrate that compliance with the development standard is unreasonable or unnecessary or that there are sufficient planning grounds to justify the flexibility so that ultimately the desired future character and intensity of development is achieved. Furthermore, I am not satisfied from the evidence that the allowance of this additional floor space will result in a better outcome. For these reasons the application is refused.

Court orders

The Court orders that: 1. The appeal is dismissed. 2. Development Application No DA 201500105 for the addition of a 6th storey to accommodate 10 residential units, together with an additional 10 car parking spaces at No 32 - 72 Alice Street, Newtown is refused. 3. The exhibits may be returned except for 3, 5, and A. R Hussey Acting Commissioner

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: 30 November 2015

At a glance

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Judgment (19 paragraphs)

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Cases Cited (3)