Architects Becerra v Council of the City of Sydney - [2014] NSWLEC 1250 - NSWLEC 2014 case summary — Zoe

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Architects Becerra v Council of the City of Sydney

[2014] NSWLEC 1250

Land and Environment Court (NSW)|2014-11-27

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2014-11-27

Catchwords

DEVELOPMENT APPLICATION: Residential flat building

Source

Original judgment source is linked above.

Catchwords

DEVELOPMENT APPLICATION: Residential flat building

Judgment (11 paragraphs)

[1]

Judgment 1COMMISSIONER: The applicant appeals the Council of the City of Sydney's refusal of Development Application D/2013/1461 for the construction of a 6 storey residential flat building consisting of 11 apartments, 2 car parking spaces, 3 bicycle parking spaces and a landscaped pedestrian through link at 1 Sparkes Lane, Camperdown. 2Following a conciliation conference held in accordance with s 34 of the Land and Environment Court Act 1979 (the Court Act) on 9 October 2014, the applicant filed a Notice of Motion seeking leave to rely on amended plans. The amendments seek to address a number of issues raised by council in its Statement of Facts and Contentions. The amended plans were provided to residents who had made submissions opposing the development. 3The matter resumed on site on 27 November 2014 and the Court and the parties had the opportunity to hear from a number of nearby residents. The concerns raised by the residents are summarised as:

Loss of sunlight to the rear private open space of 14 and 18 Sparkes Street, Camperdown;
Excessive height, bulk and scale in the context of the site's proximity to a heritage conservation area and two heritage listed terraces;
Materials and finishes not in keeping with the nearby heritage items and conservation area;
Visual impact of a tall building adjoining smaller buildings;
Privacy and overlooking issues;
Noise and access issues during and after construction; and
Potential for flooding of 2A Short Street if building inadequately engineered. 4As there was no delegated authority for the council to enter into an agreement, the matter returned to court and the s 34 conciliation was terminated in accordance with s 34(4) of the Court Act. Pursuant to s 34(4)(b)(ii) of the Court Act, the parties agreed to me disposing of the matter on the basis of what occurred during the conciliation conference. 5The Notice of Motion was heard. The council did not oppose the motion, and the applicant was granted leave to rely on the amended plans. As the amendments were more than minor, an order was made under s 97B of the Environmental Planning and Assessment Act 1979 (the Act) for the applicant to pay council's costs thrown away, as agreed or assessed. 6Amongst other things, the amended plans remove the top storey, reduce the number of units from 11 to 10, provide a mixture of 7 x 1 bedroom and 3 x 2 bedroom units, provide four car parking spaces and 12 bicycle spaces; and make architectural changes to reduce the impact on adjoining properties.

[5]

Building height - contention 1 19The amended plans remove the top storey from the original proposal. The extent of non-compliance has been reduced to minor elements of the building including the lift overrun (+ 0.87m) and the (front) north-western portion of the building (+0.57m). 20The council considers the exceedence of the height control is very minor and accepts the planners' agreed position that there are no detrimental impacts on adjoining properties as a consequence of the non-compliant elements. 21The applicant prepared a new cl. 4.6 request for a variation to the height control. I have read and considered the written request and I agree with the planners' position that there are sufficient environmental planning grounds to justify the minor contravention of the development standard. 22While many of the objectors remain unhappy with the height of the proposed development, I agree with the planners that SLEP allows a height limit of 18m and is in accordance with the desired future character and strategic planning objectives anticipated in the LEP. While the heritage items immediately to the west are subject to a 9m height control, both the height of buildings map in SLEP and the height in storeys map in SDCP indicate the area to the south, north and west beyond the heritage items are permitted to have a maximum height of 18m and a 5 storey limit. The area to the east and northeast has a height control of 12m and a 3 storey limit. Therefore I agree that the council has anticipated the height transitions in the immediate area - including the heritage conservation area and the heritage items. 23In regards to concerns about bulk and scale, the planners note that the amended plans achieve a floor space ratio of 2.0:1 which is well below the permitted FSR control of 2.5:1. I concur with their finding that the bulk and scale of the building are appropriate in the circumstances. 24To that end, I am satisfied that the proposal achieves the relevant objectives for height control in SLEP. Given that the non-compliant elements will have no adverse impacts on adjoining properties I find that strict compliance with the standard is unreasonable and unnecessary in the circumstances and there is no reason to refuse the appeal on this basis. 25For the record, the applicant notes that the original proposal was supported by council's assessing planning officer, albeit on the basis of a voluntary planning agreement in regards to public access along the eastern boundary. The applicant also notes that the officer supported the original cl. 4.6 variation request as the proposal met the relevant objectives.

[6]

Overshadowing - contention 2 26A supplementary overshadowing analysis based on the amended plans was prepared by Mr Steven King and considered by the planners in their joint report. 27The DCP considers the amount of direct sunlight between the hours of 9.00 am and 3.00pm on 21 June. The amended proposal increases solar access to the private open space of 18 and 22 Sparkes Street, and to the northern glazing of 22 Sparkes Street. Solar access to both the glazing and private open space of numbers 18, 20 and 22 Sparkes Street complies with the relevant controls in SDCP. 28The extent of non-compliance is limited to the rear private open space of 24 Sparkes Street, which will receive 1.5 hours of direct sunlight rather than the 2.0 hours specified in the DCP. The dwelling itself receives 3.5 hours of direct sunlight and is thus compliant. 29In order to achieve compliance, the development would have to be reduced in height by another three storeys. Council agrees that this would be unreasonable given the zoning and height controls that apply to the site. Council no longer presses this contention. 30In support, the applicant cites Blackmore Design Group Pty Ltd v Manly Council [2014] NSWLEC 1180 at [42] where Tuor C found in similar circumstances that significantly reducing the dimensions of a development to retain solar access for studio units would unreasonably limit the development potential of the site given the height and FSR controls that applied to the site. 31In regards to the oral submissions made on site by the owners of 14 and 18 Sparkes Street, the amended proposal achieves compliant solar access for their properties. For number 14, the council submits there is no overshadowing after 12.30pm as a consequence of the proposal. 32While a DCP must be a focal point of consideration of the issues, s 79C(3A)(b) of the Act requires flexibility in applying the provisions of a DCP. In the circumstances of this matter, strict compliance with the solar access controls is unreasonable and unnecessary and I agree with the parties that and the appeal should not be refused on this basis.

[10]

Public interest - contention 7 41In the summary of submissions made to council opposing the original proposal, the assessing officer concluded that the proposal would have no detrimental effect on the public interest, subject to the imposition of appropriate conditions of consent (folio 300, Exhibit 2). 42In regards to the amended proposal, the planners agree that the proposal is in the public interest as it achieves the built form intent and strategic planning outcomes sought by SLEP 2012. In addition they agree that the development provides adequate solar access to properties to the south and reasonably preserves the privacy and amenity of adjoining properties. 43To the extent that the public interest is reflected by the concerns of objectors, I am satisfied there is no evidence to support any of these issues being grounds for refusal however, several issues raised by residents are incorporated into the proposed conditions of consent. 44While heritage issues were raised by a number of objectors, heritage was not raised by council. The applicant's heritage consultant prepared a heritage report which was reviewed and assessed by council's heritage specialist. 45Council's heritage specialist concluded that the (original/larger) proposal would have "minimal heritage impact on the adjoining Hereford and Forest Lodge Conservation Area as there are other residential flat buildings within the vicinity of the site". In addition "the new six storey building will have some visual impact on the nearby two storey heritage listed terraces in Sparkes Street. However the new building can be supported.." 46Objectors also raised concerns about noise and traffic congestion during construction. Condition 51 requires a Construction Traffic Management Plan (CTMP) to be submitted. During the hearing the condition was amended to require the CTMP to include the mobile phone number for a person who can make immediate arrangements for the clearance of Sparkes Lane should there be problems for residents entering or exiting the lane. Other conditions of consent deal with noise during and after construction.

Architects Becerra v Council of the City of Sydney

At a glance

Court

Decision date

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Catchwords

Judgment (11 paragraphs)

Parties

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