Conclusions
50 The threshold issue in this matter concerns the SEPP 1 Objection to the FSR development standard. In this case, the subject development is from a relatively recent consent, being granted in 2000 for an area of commercial space/associated car parking and 5 residential units in the Business zone. This consent was subsequently modified by the conversion of part of the 1st level car park into 2 more residential units and allowed an exceedence of the FSR development standard.
51 The current application is for the further conversion of the remaining 1st floor car park area into an additional 3 residential units, together with a reduction in the commercial area and incorporation of a new ground level car park.
52 The existing consent allowed a non -complying FSR in the order of 2.07:1. This is on the basis that the 1st floor level is predominantly open and therefore its floor area is not included. However the proposal involves the enclosure of this car park area, which then increases the FSR calculation to 2.48:1 (according to the control definitions). This represents an exceedence of the FSR over the 1.5:1 development standard of approximately 65%.
53 In determining the SEPP 1, I rely on the 2 assumed objectives agreed by the planners. The 1st assumed objective of this development standard is to limit the overall bulk of the building. In the current matter, I accept that the building bulk will not change from that originally approved by council. Therefore I agree with the planners that the application should not be rejected on these grounds.
54 The more critical objective is to ensure that the intensity of any development protects the amenity of the residents. It is apparent from the view that the site fronting Victoria Road is also located adjacent to residential dwellings, many of which do not have off - street parking. I therefore accept the parking issue is a key element in the assessment of the amenity of this area. Furthermore, that competition fro the limited parking spaces is high in the current circumstances.
55 Insofar as the applicant relies heavily on council's controls that do not allow on - site parking in new residential developments in the Business zone, it seems to me that the FSR control limits the total floor space and the effective balance between the commercial space and other components, such as residential. This balance is to enable the economic and orderly development to ensure there is a desirable level of residential amenity achieved.
56 The current (non-complying FSR) development includes 8 car spaces and loading bay for the existing, larger commercial area, which is apparently fully utilised by the lessee. Notwithstanding this, he says that there is still further demand for parking associated with the commercial premises and this occasionally results in the use of on - street spaces by commercial users.
57 Taking into account the parking constraints in this neighbourhood and its proximity to the busy Victoria Road, it is apparent to me that the amount of on - site parking provided and its convenience of use is likely to influence the amenity for residents.
58 Accordingly, the intensity of use of this site directly affects the amenity of the residents. As the site is in the business zone, it seems to me that its primary purpose is to enable the economic and orderly development of business and commercial uses that are restricted in the adjacent residential zones. Such development is to provide adequate parking in accordance with the DCP.
59 As a consequence of this primary use, other secondary uses such as residential are permitted in this zone and they are not required to provide on - site parking. However the intensity of such development is controlled by the FSR development standard, to which this proposal is significantly non - compliant.
60 The approval of the current application, which further exceeds the FSR will likely add additional vehicles to the street parking demand as indicated by Mr Coady. This outcome is confirmed because it appears that the residents of the other units have requested and been been granted parking permits despite a covenant on the units that they are not entitled to such permits. Whilst this is unfortunate, it at least confirms that the residents of these types of units will likely have vehicles. I am therefore satisfied that the allowance of the additional floor space for the units will most likely increase demand for the on -street spaces and accordingly reduce the amenity of the residents.
61 It also seems to me from the evidence that the new proposed basement car park will have reduced amenity and attractiveness for use, despite being numerically compliant for the reduced commercial area. This reduced amenity arises from the following factors:
- Its entry from Prosper Street is via a 7% gradient and is in close proximity to Victoria Road, which is subject to more traffic flows than the existing entry in Prosper Lane
- No convenient loading arrangements are provided;
- This car park includes 2 - car stackers and 1 parking space at grade;
- It also relies on a turntable to manoeuvre vehicles to allow entry in a forward direction.
62 Consequently, I am satisfied to rely on the opinion of Mr Coady that these factors are likely to deter some users from this form of car parking, which is then likely to further exacerbate on - street parking competition. In this regard, I think that some weight should be given to Mr Coady's opinion that 'not providing residential car parking has less impact upon car use than not providing business parking'.
63 Insofar as there was some discussion about revised traffic arrangements in Prosper Lane to change the 2 - way traffic flows to possibly allow parking on one side to accommodate some of the 13 space deficiency identified by Mr Coady, this was speculative and no compelling evidence was presented regarding the local traffic committee's attitude to these changes. I therefore give these submissions about additional street parking little weight.
64 A key element in the applicant's submissions is that Part B4.6 of the DCP ('no car parking should be provided') acts in priority over the generic car parking requirements in A8.0. However I do not consider this merit assessment is determinative unless the SEPP 1 is allowed.
65 In summary then, I am satisfied that the outcome from allowing this development would be to decrease the commercial area and increase the residential area, which would likely increase parking demands and therefore reduce the amenity of the residents. This outcome is also likely to be compounded by the introduction of a less attractive commercial parking area. Therefore I do not consider this proposed level of intensification satisfies the assumed objective of the development standard.
66 Even though the SEPP 1 states that there are significant benefits in allowing additional affordable housing in circumstances as proposed, I think these objectives should be given less weight when determining the SEPP 1 objection. This type of development can be incorporated into a complying development whereby the primary vision of the LEP 'to protect the amenity of residents is pre - eminent'.
67 By reference to the tests in Winten Property Group v North Sydney Council [2001] NSWLEC 46, it seems to me that the satisfaction of the 4th test regarding whether compliance with the development standard is unreasonable or unnecessary also requires consideration of whether a complying development is unnecessary or unreasonable. In the current matter, I am satisfied that compliance with the development standard would likely achieve the assumed objective. In the ultimate, I do not consider the SEPP 1 Objection demonstrates that compliance with the FSR development standard is unnecessary or unreasonable.
68 Apart from the SEPP 1 issue, the other substantive issue concerns the amenity of the new units. I accept that the amendments undertaken during the hearing would improve the solar access and internal amenity of these units, particularly C and E. But in my assessment, the internal Unit D still has poor amenity due to its small courtyard and solar access, however this is not determinative because of the failure of the SEPP1.