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[2014] NSWLEC 1070
Land and Environment Court (NSW)
2014-04-08
Original judgment source is linked above.
Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. D/2013/1336 for a four and five storey residential flat building and the retention of existing townhouses at 4 Boundary Street, Alexandria (the site) by the Council of the City of Sydney (the Council). 2The appeal was subject to mandatory conciliation on 17 December 2013, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached during the conciliation phase, the conciliation conference was terminated on 20 January, 2014, pursuant to s 34(4) of the LEC Act. 3On 11 February, 2014, the Court granted leave to the applicant to rely upon amended plans. The plans were further amended following the joint conferencing of the urban design and planning experts and leave was granted by the Court for the applicant to rely on the amended plans on the basis agreed by the parties, pursuant to s 97B of the Environmental Planning and Assessment Act 1979 (the proposal).
Issues 4The Council's contentions in the matter can be summarised as:
The site and its context 6The site is on the south-western corner of Wyndham and Boundary Streets and is bounded to the west by Garden Street. The site contains a two storey hotel at the eastern end, dating from the Victorian period, with an awning on the Wyndham and Boundary Street facades. The site also contains 7 recently constructed three storey terraced townhouses fronting Boundary Street, with basement parking, accessed from Boundary Street. 7To the south of the site and fronting Wyndham Street is a contemporary two storey town house and further to the south there are contemporary three storey residential flat buildings. 8On the opposite side of Wyndham Street is a park, the 'Daniel Dawson Playground', with children's play equipment and seats. 9Technology Park is on the western side of Garden Street. Opposite the site, on the Technology Park site, is a five to six storey contemporary building. 10Diagonally opposite the site on the intersection of Wyndham and Boundary Street, is a contemporary four storey residential flat building and further down Wyndham Street, to the south and on the opposite side of Wyndham Street to the site, is a four and five storey shop top housing development. 11Wyndham Street is a busy, one way street with traffic heading north towards the city.
The proposal 12The proposal is to demolish the existing hotel on the corner of Wyndham and Boundary Streets and to construct a four and five storey residential flat building with retail at ground level and a basement below. The basement will connect via a doorway to the existing basement of the townhouse development on the site.
Planning Framework 13The proposal is subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) at cl 4(1)(a). 14Consideration is to be given to the design quality of the residential flat development, when evaluated in accordance with the design quality principles, at cl 30(2)(b) of SEPP 65 and the publication Residential Flat Design Code (RFDC) at cl 30(2)(c). 15The RFDC supports the ten design quality principles identified in SEPP 65 and gives greater detail in how to achieve these principles in development proposals. 16The RFDC objectives for open space are as follows:
Public submissions 29One written objection to the proposal was included in the Council's bundle (exhibit 2, tab 4). The resident objector would like the existing building to be retained.
Expert evidence 30Expert planning evidence was provided by Mr Ben Chamie on behalf of the Council and Mr Anthony Betros on behalf of the applicant. Expert urban design evidence was provided by Ms Cindy Ch'ng on behalf of the Council and Ms Gabrielle Morrish on behalf of the applicant. 31The experts agreed on the following:
Calculation of the height of the proposal Evidence 32The planning experts disagreed on the level/s that constituted the existing ground level on the site. 33According to Mr Betros, the existing ground level of this site is the finished floor level of the ground floor of the existing building on the site and the existing level of the basement, which occupies a small area in the north eastern corner of the site. The vertical distance between the ground floor level of the existing building (RL26.19) and the roof of the amended proposal (RL41.06) is 14.87m, which complies with the 15m building height development standard. However, a tiny portion of Level 4 overlaps the small basement at the north-western corner of the existing hotel and it is the applicant's position that is the area of non-compliance with the 15m building height development standard, as the vertical height for the portion of Level 4 that overlaps the basement is measured from the floor level of the basement. Mr Betros supported this approach with a recent example of a consent issued by the Council for a site with an existing two storey basement, where the existing ground level was taken to be the lower floor level of the existing basement. 34According to Mr Chamie, the existing ground level of the site is the level of the footpath at the site boundary and this level is extrapolated across the site to measure the vertical distance to the highest point of the building. Mr Chamie used the ground level of the footpath (RL25.0) at the north-western corner of the site, resulting in a maximum height of 16.06m for the north-western corner of Level 4 and a non-compliance with the building height development standard of 1.06m. Findings 35As building height is defined in LEP 2012 as the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like, it is essential to nominate an existing ground level in order to be able to determine the height of the building. This is usually achieved by taking the lowest level on an existing site, as shown on the site survey, directly beneath the highest part of the proposed development, to determine a maximum building height dimension. 36The definitions of basement, height of buildings and ground level in LEP 2012 have come from the dictionary of the standard instrument (Standard Instrument - Principal Local Environment Plan). Ground level (existing) is defined in LEP 2012 as the existing level of the site at any point. This definition of existing ground level is sufficiently vague that both expert planners' reasoning can be argued, because the particular difficulty in applying this definition to this site is that the existing building occupies the whole of the site area and so there is no 'ground' (as in soil/garden/paving) around the building and on the site, from which the existing ground level can be determined by a site survey. 37It is relevant to consider the objectives of the building height development standard in considering how best to determine the maximum height of the building using the dictionary definitions in LEP 2012. The objectives include, at cl 4.3(a) of LEP 2012, to ensure the height of development is appropriate to the condition of the site and its context. As one of the purposes of the development standard is to relate the proposal to its context, it follows that the determination of the existing ground level should bear some relationship to the overall topography that includes the site. 38Mr Betros' approach focuses entirely on the existing building on the site. Once the existing building is demolished, the point at which the height of the building was measured from will no longer be discernable or relevant. Importantly, this approach does not relate the building height development standard to the context of the site, it only relates it to the building to be demolished. Using this method, it is conceivable that on one property, the existing ground level will be taken as two storeys below ground level where there is a basement (as in the example raised by Mr Betros) and on the adjoining property, the existing ground level will be taken as being well above ground level where a building occupies the entire site and the finished floor level is higher than the footpath, resulting in adjoining sites with starkly different height limits arising from the same development standard. 39Furthermore, the definition of basement in LEP 2012 is the space of a building where the floor level of that space is predominantly below existing ground level and where the floor level of the storey immediately above is less than 1 metre above existing ground level [italics added]. From this definition, it does not follow that existing ground level becomes the level of the basement floor or the soil beneath the basement following the construction of a basement. A basement is, by definition, below ground level and so the level of the basement floor cannot be taken to be existing ground level. 40For these reasons, I do not accept Mr Betros' approach of defining existing ground level as the ground floor level of the existing building and then dropping it down to the basement level in the north-eastern corner of the site where the existing basement is located. This results in an absurd height plane with a large and distinct full storey dip in it as it moves across the site and crosses the basement of the existing building, which relates only to a building that is to be demolished and has no relationship to the context of the site. This is not a criticism of Mr Betros' reasoning, however, as I understand he has adopted the approach taken by Council in previous assessments, which is reasonable. 41I prefer Mr Chamie's approach to determining the existing ground level because the level of the footpath at the boundary bears a relationship to the context and the overall topography that includes the site and remains relevant once the existing building is demolished. RL25.0 is the footpath level adjacent to the site boundary at the north-western corner of the site on Boundary Street, which is the lowest point on the site (as there are only levels for the northern boundary along Boundary Street and the eastern boundary along Wyndham Street). Considering the topography around the site, the highest point along the site's boundaries is the north-eastern corner, on the corner of Wyndham and Boundary Streets (RL26.11) and the lowest point is likely to be the opposite corner, the south-western corner. Level 4 of the amended proposal is setback 4.51m from the eastern boundary and 4.77m from the northern boundary. So the height above ground level on north-western corner of Level 4 is approximately 1m over the 15m building height development standard and the exceedance is less than 1m on the eastern side of the Level 4, as it is closer to the highest point of the site at the north-eastern corner. 42However, nothing turns on which definition I prefer, as the amended proposal exceeds the building height development standard on both experts' determination of the existing ground level (the difference between the experts being the quantum and location of the exceedance) and the applicant has provided a written request for the contravention of the building height development standard, pursuant to cl 4.6 of LEP 2012, which is dealt with in the following paragraphs.
Contravention of the height of buildings development standard Evidence 43According to the applicant's written request, it is unreasonable and unnecessary for the proposal to comply with the building height development standard for the following reasons:
Common open space Evidence 51According to Council's experts, the roof of the amended proposal should be devoted to communal open space. 52According to Ms Morrish, seven units have an area of private open space and the area of private open space provided is generous. Findings 53Seven of the total nine units have an external terrace, which meets the requirement of cl 4.2.3.7 of DCP 2012 for 75% of apartments to have private open space. I agree with Ms Morrish that the external terrace area for each of the seven units is generous, considering the compact size of each unit and each terrace is accessed directly from the living room and capable of serving as an extension of the living area (except for unit 3.01, where the large terrace is accessed from a hallway on the upper level). As the proposal is for small and compact units in a dense urban environment, I am satisfied that the trade off of no communal open space for a generous area of open space for most of the units is acceptable. Furthermore, there is ample public open space in the vicinity of the proposal for passive and active recreation, including the Daniel Dawson Playground across Wyndham Street and Technology Park.
Ground floor level of the commercial tenancy Evidence 54According to Ms Ch'ng, the commercial tenancy should be raised to the Wyndham Street footpath level as this is the primary address of the site and it provides a better outcome for activating the streetfront to Wyndham Street and the Boundary Street entry should be treated as a secondary entry. 55According to Mr Betros, the primary retail frontage to Boundary Street makes sense on this corner site as it activates both ground level facades and avoids high walls along Boundary Street, as the footpath would fall below the floor level of the tenancy if it were at the Wynhdam Street level. According to Ms Morrish, the proposal still maintains a good presence to Wyndham Street as pedestrians can see through the glazing on the ground level of the Wyndham Street elevation. In Ms Morrish's view, raising the ground floor tenancy to the level of the footpath of Wyndham Street would result in a noise impact to the tenancy from the heavy traffic on Wynhdam Street. Ms Morrish said in oral evidence that the only issue with having a commercial tenancy floor level below that of the footpath is when the ceiling of the ground floor is at eye level for a pedestrian standing on the footpath and that is not the case for the proposal, as the underside of the slab of the level over is 2.6m higher than the footpath on Wyndham Street. Findings 56I am satisfied that the ground floor level of the commercial tenancy at RL25.0, being approximately 1.2m below the Wyndham Street footpath, is acceptable for the following reasons:
Awning to Wyndham and Boundary Streets Contention 57The Council's position is that the proposal should include an awning on the Wyndham Street and Boundary Street facades, as the existing building on the site includes an awning and it provides shelter to commuters at the bus stop and pedestrians waiting at the pedestrian crossing. Findings 58The proposal includes discrete awnings over the entry to the commercial tenancy on Wyndham Street and the entries to the commercial tenancy and residential apartments on Boundary Street. The Wyndham Street awning will provide protection for the the area on the footpath directly adjacent to the bus stop and can be used by commuters during inclement weather. 59The awnings over the entries to the proposal will contribute to the legibility of the development. 60There is no justification for requiring a continuous awning around the streetfront elevations, because the site is not part of a retail strip requiring continuous cover over the footpath and there are no fixed awnings over any other building in the vicinity of the site.
Waste and ducting Contentions 61The Council's contends that the proposal does not comply with the requirements of the Waste Code, provision A16, requiring paths of travel for Council's residential waste collection workers to be level and without steps and not more than 10m from the entrance point. Council further contends that the current arrangement for the townhouses on the site of putting bins on the footpath is unsatisfactory for the proposal. 62The applicant has provided a Basement Waste Path (exhibit 3, tab K), which denotes an on grade path from the residential waste room in the basement of the proposal to Boundary Streeet, via the existing basement of the townhouses. 63The Council contends that the proposal does not provide mechanical ventilation ducting and discharge points for the ground floor commercial tenancy, which may preclude this area being used as a food and drink premises in the future. 64The applicant's response to this contention is that if ducting is required for a food and drink premises in the commercial tenancy, an exhaust system with horizontal ducting could be incorporated into the commercial tenancy (an example of an exhaust system is provided at exhibit 3, tab I). Findings 65Given the small footprint of the proposal, it is reasonable to make use of the existing basement access on the site. As Boundary Street falls to the west, the entry to the existing basement is located at the western end of Boundary Street and is on grade with the street at the point of entry. The basement of the proposal is at the same level as the basement of the townhouses on the site, providing level access from the residential waste room to the existing basement entry. This is a convenient and satisfactory arrangement for the disposal of residential waste. 66The use and fitout of the commercial tenancy will be the subject of a future development application. If the commercial tenancy is unsuitable for use as a food and drink premises, this is a commercial consideration that is the prerogative of the applicant.
Conclusion 67Having regard to the relevant planning controls and the evidence provided, I find that the amended proposal can be granted consent, for the reasons set out in the judgment. 68As the experts agreed there are no amenity impacts caused as a result of the partial fifth level (Level 4) and as the views of Level 4 from the public domain are acceptable, I am satisfied that the height of the proposal and the number of storeys is appropriate to the context and that the proposal is consistent with the variety of other development in the locality. Therefore compliance with the building height development standard is unnecessary in the circumstances. 69The trade off of not providing communal open space for providing a generous area of open space for most of the units is acceptable, given the dense, urban context of the proposal and the small and compact size of the units. There is ample public open space in the vicinity of the proposal for passive and active recreation, including the Daniel Dawson Playground across Wyndham Street and Technology Park. 70The ground floor level of the commercial tenancy, which is approximately 1.2m below the Wyndham Street footpath, achieves an appropriate interfaces at ground level between the building and the public domain. There is no justification for requiring a continuous awning around the streetfront elevations, as the site is not part of a retail strip requiring continuous cover over the footpath and there are no fixed awnings over any other building in the vicinity of the site. 71I am satisfied that the proposal is consistent with the relevant design principles of SEPP 65 and exhibits design excellence, pursuant to cl 6.21(4) of LEP 2012.
Orders 72The orders of the Court are:
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: 17 April 2014
Bettar
Council of the City of Sydney