Beraci Pty Ltd v Parramatta City Council

APPLICANT Mr P Clay, Barrister Instructed by Advance Legal LEGAL REPRESENTATIVES:

RESPONDENT Mr I Hemmings, Barrister Instructed by DLA Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10538 of 2007 Beraci Pty Ltd v Parramatta City Council

JUDGMENT Introduction 1 This is an appeal in relation to a development application for the demolition of a number of existing residential and commercial buildings and the construction of an eight storey mixed-use development comprising 128 dwellings and various retail areas plus 4 two-storey residential duplex or townhouse buildings at 171 - 187 Parramatta Road and 58 and 60 Victoria Street, Granville. The mixed-use building as it presents to Parramatta Road is to have a length of some 80 m.

2 Car parking is to be provided in two basements under the mixed-use building with residential access via Victoria Street and Duke Street (presently unmade). Commercial access is off Parramatta Road. The townhouse buildings are in Victoria Street and have their own individual garages.

3 The site comprises nine separate lots. It has a frontage of about 236 m to Parramatta Road and has a total area of about 8,294 square metres.

Planning controls Parramatta Local Environmental Plan 2001 4 Under Parramatta Local Environmental Plan 2001 site is zoned Mixed Use 10 along its Parramatta Road frontage and Residential 2A along its Victoria Street frontage. Shops and residential flat buildings are permissible with consent in the Mixed-Use Zone and dual occupancy development is permissible with consent in the Residential Zone.

5 Clause 16(3) of the LEP provides that consent must not be granted for the carrying out of development unless it is consistent with the objectives of the zone. The objectives of the Residential Zone include the encouragement of the development of low-density housing forms and to ensure that these are in character with surrounding development. The objectives of the Mixed Use Zone include the need to encourage a mix of compatible land uses; the promotion of development to its maximum potential while minimising environmental impacts; and to establish a highly attractive area to live and work in. 6 Clause 39 of the LEP limits building height to two storeys for dual occupancy development in the Residential Zone and the proposed dual occupancy buildings comply with this development standard. Clause 40 sets a maximum floor space ratio of 0.6:1 for dual occupancy buildings and this is also complied with. There are no relevantly applicable development standards for the mixed-use building.

Parramatta Development Control Plan 2001 7 Also applicable is Parramatta Development Control Plan 2001 that requires new development to be responsive to its context and be compatible with existing and the desired neighbourhood character. The specific controls in Part 5 of the DCP have the objectives of reducing impacts on adjoining properties particularly in relation to separation between buildings, integration, siting and design. These controls are referred to in greater detail later in this judgment. Resident objections 8 The application was advertised on several occasions and some 160 letters of objection (many in a standard form) and a petition containing 210 signatures objecting to the proposal were received. A number of these residents gave evidence when the hearing began on-site. Matters of concern raised in these objections include: o The excessive height, bulk and scale of the proposed mixed-use building and its consequential adverse amenity impacts on neighbouring and nearby residential development, including overlooking, outlook and noise. o Significant traffic generation and congestion in Victoria Street and other surrounding streets resulting in reduced amenity including noise and air pollution. Demand for on street parking will increase to the disadvantage of existing residents. o The proposed development fails to meet many of Council's requirements such as open space, building height and urban design. o The residents of the proposed mixed-use building will suffer from poor air quality associated with pollution generated by traffic using Parramatta Road and the nearby M4 Motorway and Woodville Road. Council's decision 9 In December 2007 the application was refused by the council for reasons essentially involving failure to comply with various aspects of the applicable planning controls and impacts on the existing residential development in Victoria Street. Expert evidence 10 On behalf of the respondent Council expert evidence was given by Mr B Delapierre (town planning) and Dr N Holmes (air quality).

11 On behalf of the applicant expert evidence was given by Mr N Pontin (building services), Mr N Kennan (town planning), Mr F Fong (landscape), Mr S Kennedy (urban design) and Mr C. Hazel (traffic). Council's contentions 12 The matters of contention raised by the council in relation to the proposed mixed-use building essentially comprise: o Building height o Privacy and overlooking o Rear set back zone interface o Communal open space o Traffic, o Ventilation, o Resident safety, o Streetscape presentation. 13 In my opinion these contentions fall into three categories: o The urban design aspects of the proposed mixed-use building in Parramatta Road taking into account the requirements of the DCP. o Impacts of the mixed-use building on neighbouring residential development particularly those across the zone interface as well as traffic and privacy impacts. o Internal amenity aspects within the mixed-use building comprising communal open space and dwelling ventilation. Urban design - Parramatta Road Planning controls 14 As indicated above the objectives of the Mixed Use Zone include the promotion of development to its maximum potential while minimising environmental impacts. Also, the DCP requires new development to be responsive to its context and be compatible with the existing and desired neighbourhood character.

15 Part 4.4 - Design Elements contains objectives that require that the bulk and scale of new development preserve and enhance neighbourhood amenity and character. Building bulk and height is to be distributed so as to maximise usable outdoor areas for landscaping and the like as well as optimising development capacity within environmental constraints. Building heights should respond to the scale of the street and surrounding buildings. 16 The associated performance criteria require that new buildings adopt the predominant height and scale of adjoining buildings and have a similar bulk and mass. Building heights are to be such as to not be dominant in the streetscape and form a clear skyline. These are to be no more than 1 - 6 storeys (subject to Part 5). Buildings on corners are to be slightly higher than buildings within the block to ensure the legibility of street blocks and skyline and enabling intersections to be understood as punctuation points in the street system

17 Part 5.7 - Mixed Use Development contains performance criteria for building siting and building form that deal with massing, scale, form and articulation. These include: visual continuity along the street; front setbacks to ensure separation from the public domain; and massing, scale, form and articulation to enhance the public domain. 18 Part 5.7.3 contains controls for mixed-use buildings in the North Granville area (where the subject site is located) that are predominantly residential. The maximum floor space ratio is 2:1 although for corner sites this may be increased to 2.5:1. The maximum building height is 5 storeys although an additional storey may be permitted to the rear portion of buildings situated on corner blocks. Also the rear set back is to be 40% of the length and width of the site and this area is to be landscaped. Such landscaping can be provided above a basement car park but must have a minimum soil depth of 1.5 m. (By way of comment I note that the setback requirements exhibit a certain degree of ambiguity and are difficult to apply to this unusually configured site).

19 The proposed building having a floor space ratio of 2.66:1 and a height of eight storeys does not comply with these floor space ratio and height controls. Evidence 20 Mr Kennan argued that the non-compliance with the height control should be considered in the light of the fact that a six-storey building comprising mostly commercial floorspace with its attendant increased floor to ceiling heights would have an overall height that is about the same as the proposed eight-storey building.

21 Whilst Mr Delapierre found no problem with the building having a uniform height it was his opinion that in its presentation to Parramatta Road it was two storeys too high and that this is contrary to the desired future character of Parramatta Road as indicated by the DCP.

22 Mr Kennedy believed that the height controls were a loose fit and that taking into account possible variations in floor heights and roof configurations (flat or pitched) the height of the building is appropriate. Moreover the cleverly articulated form enables the building to achieve its physical height without creating an unreasonable scale to the street. 23 Mr Kennedy also explained that the strength of the building is in its Parramatta Road elevation including the manner in which it steps down to the railway line rather than stepping up. The exclamation mark sought by the DCP is the flagpole on the front of the building. He does not support the approach of the DCP where taller buildings are required on corner blocks. Instead he contends that this design addresses the termination (at the railway line) of this very long part of Parramatta Road. These matters are indicative of a better design outcome.

Conclusions 24 In relation to floor space ratio and building height it is necessary to deal with the question of whether the subject site comprises, for the purposes of the DCP, a corner site. Relevantly it occupies the majority of land in the Parramatta Road street block between Albert Street and the unmade Duke Street that adjoins and runs parallel to the railway line. This part of the site fronting Parramatta Road comprises eight separate lots (Nos 167 - 187) and it is only 167 Parramatta Road on the corner of Albert Street that is not included within the site of the proposed mixed-use building.

25 It was submitted on behalf of the council that this is not a corner site despite the proximity to the elevated railway line and taking into account that Duke Street is unmade and is unlikely, given the steep topography, to ever be constructed. The applicant contends to the contrary relying on the evidence to this effect of Mr Delapierre.

26 In order to make sense of the DCP's reference to corner sites, as I must, typical subdivision patterns need to be examined. In this area the majority of urban allotments are surrounded by streets in a grid pattern that reveal street blocks with corners. There is, in most cases, on each of these corners an allotment that can be distinguished from other allotments in the block by the fact that it has a frontage to two roads rather than a single frontage. In my opinion the street block bounded by Victoria Street, Albert Street, Parramatta Road and Duke Street is a street block that has two Parramatta Road corners. Despite the fact that Duke Street is unmade (and notwithstanding that it is to be partly constructed for the purposes of this development), for the purposes of applying the DCP to this mixed-use development these are the relevant corners. 27 In these circumstances, to conclude that the seven Parramatta Road allotments (of the eight allotments between Duke Street and Albert Street) comprising 171 - 187 Parramatta Road comprises a corner site is not logical. To so conclude would mean that the subject site adjoins another corner site (167 Parramatta Road) with nothing in between, thus failing to meet the DCP requirement of defining street blocks and enabling intersections to be understood as punctuation points in the street system.

28 On this basis, that part of the site comprising 171 - 187 Parramatta Road should not be treated, in its entirety, as a corner site. However if, for argument's sake, the subject site were limited to 187 Parramatta Road this would, on this analys, be a corner site. I thus conclude that it is only the western part of the subject site that can be considered to be a corner site, although it is not possible to determine exactly where the change between the corner site and that part of the site that is a non-corner site occurs. 29 Hence, the effect of the DCP controls is to require that there be a building on the corner of Parramatta Road and Duke Street that is slightly higher than buildings within the street to the east, that are not on a corner site.

30 The presentation of the proposed building to Parramatta Road is, notwithstanding some articulation, predominantly of six and seven floors and if anything stepping down towards the Parramatta Road and Duke Street corner, contrary to what I accept to be the requirements of the DCP.

31 In relation to building height, as indicated above the maximum building height is five storeys although an additional storey may be permitted to the rear portion of buildings situated on corner blocks. Ignoring the question of what exactly is the rear portion of what might be a corner block, that part of the proposed building that is closest to the corner is partly seven and partly eight storeys in height and is thus one or two storeys in excess of the standard. As for the remainder of the building where the additional storey allowance is not available the exceedence is thus three storeys. 32 In terms of considering the bulk and scale of the proposed mixed-use building, Mr Kennan's approach of comparing it with the height of a mostly commercial building is, in my opinion, and despite the fact that the DCP makes no such allowance, a not unreasonable approach. However a permissible maximum five-storey predominantly commercial building (permissible on the non-corner of the site) would still be one storey lower than the proposal.

33 Applying a similar approach to the floor space ratio and height controls in the DCP means that a floor space ratio of 2.5:1 is applicable to the corner site and a floor space ratio of 2.0:1 is applicable to the remainder. Hence an acceptable floor space for the whole building is likely to be somewhere between these two. I understand that the agreed floor space ratio is 2.66:1. By comparison, applying a floor space ratio of 2.5:1 equates to a floor space exceedence of about 900 square metres and applying a floor space ratio of 2.0:1 equates to a floor space exceedence of about 3,750 square metres. The relevant exceedence being somewhere between these two figures is considerable. 34 In terms of the building's presentation in Parramatta Road I agree with Mr Kennan and Mr Kennedy that for a building of its size it comprises a quality innovative design. However the above examination of the building in the light of the requirements of the DCP indicates significant and in my opinion, serious deficiencies. Amenity aspects Traffic 35 In relation to traffic Mr Delapierre said that the increase in vehicular traffic in Victoria Street was unreasonable because a significant component of the increase would be generated by the non-compliance with the floor space ratio requirement.

36 This part of Victoria Street is a relatively short, residential no-through road that generates low traffic volumes. It is clear that there will be a significant increase in traffic although it will remain within the street's capacity. Whilst this increase is not in itself determinative of the application the additional traffic is greater than what might otherwise be reasonably anticipated by a complying development that would otherwise have fewer impacts on the residential amenity of the street.

Overlooking, bulk and scale 37 The mixed-use development performance criteria in the DCP include the need to ensure that there are no impacts on adjoining properties particularly in terms of privacy and the locating and scaling of buildings to minimise overlooking. In this context that above-mentioned height and floor space ratio controls are relevant.

38 According to Mr Kennan, provision of extensive screening devices and landscaping should alleviate overlooking opportunities. However, according to Mr Delapierre the perception of overlooking from such a large building (in terms of length and height) for neighbouring residential properties will be considerable. This is compounded by the fact that, in terms of its relationship to the single level neighbouring residential development to the north, the proposed eight-storey building that is two storeys taller than it should be, has minimal stepping beyond the ground floor resulting in an abrupt change to the height. Also the use of landscaping to alleviate privacy impacts is inappropriate. Consequently a three-storey building would be more appropriate. 39 It is plain that the provision of screening devices and landscaping can restrict opportunities for overlooking to the north but limited weight should be given to the use of landscaping for this purpose. One can nevertheless understand the resident's concerns about perceptions of overlooking and as well as the bulk and scale of the elongated eight-storey building that is positioned (at its upper levels) about 25 m from the back of the houses on the south side of Victoria Street.

40 Despite the fact that the proposed landscaping could mitigate bulk and scale, the diagrams provided reveal that about three storeys of the building would appear above the landscaping. Plainly a complying building would not be so apparent. Internal amenity aspects Communal open space 41 The objectives in the DCP include the need to provide recreational opportunities and areas of private open space. The associated performance criteria include the need to provide open space of sufficient area and dimensions to enable recreational and outdoor use as well as for landscaping and service functions.

42 Whilst there was no concern as to the quantity of communal open space provided within the building, Mr Delapierre's concern is that what is provided is of poor quality. The provision of on-site communal open space is of particular importance given the lack of public open space in the vicinity of the site. Mr Kennan disagreed explaining that the communal open space is of good quality. It is north facing, landscaped and will provide suitable areas for the enjoyment of residents.

43 Two areas of communal open space are provided within the development. One area (about 20m x 12m) is situated towards the western end of the building at ground floor level. The second (about 130m x 5m) at first floor level virtually extends the full length of the building.

44 Whilst facing north, the ground floor area is essentially enclosed on three sides as well as being substantially roofed over by the first floor landscaped terraces. Also, it is poorly located in terms of access from the proposed dwellings. As for the second area this is positioned between the northern boundary landscaping and the adjacent outdoor terraces of the 26 first floor dwellings and those of the 16 second floor dwellings. In these circumstances I agree with Mr Delapierre that the communal open space is not of an appropriate standard and its placement and configuration needs to be reconsidered. Dwelling ventilation 45 In relation to internal amenity, the DCP requires that buildings have a slim cross section to enable cross ventilation and to provide dual aspects for dwellings and apartments. Plainly the proposed building responds to this requirement.

46 In response to the very noisy and polluted environment of Parramatta Road, an innovative screen design for the access walkways on the south side of the building is proposed. This provides a ventilation system that concurrently reduces noise intrusion into the building.

47 Mr Kennan believed that the proposed ventilation system would facilitate an appropriate cross ventilation of the dwellings. Dr Holmes said that the air quality at the site is not sufficiently poor to recommend against the development on the grounds of air quality.

48 I accept that the system of cross ventilation for the dwellings may not be perfect, but in this difficult location I expect that it could be developed to an acceptable degree such that a building of this kind could be appropriately ventilated. I nevertheless remain concerned that the windows that open onto the walkway that need to be open for ventilation could result in an unsatisfactory level of aural privacy. Conclusions 49 There can be little doubt that this is an innovative architectural design and despite its size its presentation is of a quality seldom seen on Parramatta Road. However I have not been persuaded that this is sufficient to overcome the cumulative effect of the various deficiencies of the proposal. Of greatest concern is the height of the building taking into account the requirements of the DCP and the relationship of the building to the neighbouring residential development to the north.

50 The planning principle in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117, can be applied to development at a zone interface as exists here. That principle in effect provides that the residents in the Residential Zone must accept, within reason, impacts associated with a higher density and larger scale development that can occur in the adjoining Mixed Use Zone. Conversely any development of this site must take into account the existing and likely future development of the adjoining Residential Zone. As a consequence, as indicated by the principle, it may be that the development of this site may not be able to achieve the full potential otherwise indicated by the applicable planning controls. 51 In this regard the particularly relevant and important planning controls are those involving building height and floor space ratio. As discussed above these controls are exceeded, contrary to what might be expected if the principle Seaside were applied. As a consequence and having taken into account the impacts on the dwellings in Victoria Street in the light of the Seaside principle I have decided that the proposed mixed use building would not enhance neighbourhood amenity as is required by the DCP and is thus unsatisfactory.

52 Whilst Mr Kennedy's opinion that this building would provide an appropriate visual termination to this part of Parramatta Road may be correct, I do not accept that this is sufficient to set aside the requirements of the DCP. Hence although the proposal seeks to maximise the provision of compatible land uses it fails to minimise environmental impacts and thus, on the basis of clause 16(3) of the LEP, the development application must be refused.

      T A Bly
      Commissioner of the Court
      ljr

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