Beynon S v Canada Bay City Council

Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46; Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported); Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75; CASES CITED: Stadurn Pty Limited v Blacktown City Council [2004] NSWLEC 348; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634 ; North Shore Gas Co. North Sydney Municipal Council (Unreported 15 September 1986)

APPLICANT Mr B Goldsmith, agent

LEGAL REPRESENTATIVES: RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10530 of 2004 Scott Beynon v Canada Bay City Council

JUDGMENT 1 COMMISSIONER: This an appeal against the refusal by Canada Bay Council (the council) of Development Application 870/03 for the demolition of an existing factory building and the erection of a three-storey residential flat building at 40-44 Tennyson Road and 11-15 Bertram Street, Mortlake (the site).

2 The matter was originally heard on 19 August 2004 but was adjourned at the request of the applicant to allow the preparation of amended plans and the readvertising of these plans.

3 I record that inspection of the site and surrounding areas was undertaken on the morning of the first day of the hearing with representatives from both parties.

4 For the reasons set out in this judgement I have concluded that the appeal should be dismissed and development consent refused. The site 5 The site comprises four existing allotments and is located between Bertram Street and Tennyson Road, Mortlake. The eastern frontage to Tennyson Rd has a width of 30.19 m and the western frontage to Bertram Street has a width of 31.310 m. The northern side boundary has a total continual length of 76.6 m and the southern boundary is articulated with a total length of 72.38 m. The total site area is 2356.3 sq m. The site has a mild fall of 0.72 m towards its western boundary and Bertram Street.

6 The immediate locality of the site comprises a mix of development, with some recently constructed residential flat buildings/mixed developments along Tennyson Rd and several industrial premises. Neighbouring development to the north comprises a three and four storey mixed development divided into two buildings. Adjoining to the south are two factory warehouse buildings. To the east, on the opposite side of Tennyson Road is the Breakfast Point residential development including several three-storey residential flat buildings. To the west on the opposite side of Bertram Street are single detached dwellings. The amended proposal 7 The amended proposal provides for a three-storey residential flat building containing 22 residential units with basement parking. The proposal will contain 12 x 2 bedroom and 10 x 3 bedroom units. Access to the basement level is obtained from Bertram Street. Two elevators will provide access from the basement level to the residential units. Each unit will feature a master bedroom, additional bedroom/s, ensuite, internal foyer and internal lift access. Ground level units are provided with paved courtyards and upper level units are provided with balconies. Relevant planning controls 8 The site is zoned 10(a) Mixed - Use zone under Concord Planning Scheme Ordinance (the Ordinance). The proposed use is permissible within this zone. Clause 41L(2) provides requirements for height that restrict development to a maximum height of three storeys or 12 metres above natural ground level. Clause 41L(3) provides requirements for density that restricts residential development to a maximum density of 35 dwellings per hectare. Clause 41L(4) provides requirements for floor space ratio (FSR) that restricts residential development to a maximum FSR of 0.75:1. 9 There was agreement that the proposed development did not satisfy the development standards for density and FSR. To address the departures, the applicant lodged objections pursuant to State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) to show why strict compliance with the development standard is unreasonable and unnecessary in this case.

10 State Environmental Planning Policy No 65 - Design of Residential Flat Buildings (SEPP 65) also applies. The proposed development applies through cl 4 of the policy, being a residential flat building of 3 or more storeys. Clause 30(2) requires consideration to the given to the Design Quality Principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)).

11 Development Control Plan No. 35 - Development in the 10(a) Mixed Use Zone, Mortlake Point, Mortlake (DCP 35) also applies. Relevantly, Part C addresses built form/architectural character, building and scale, streetscape and public domain. The issues 12 Following the readvertising, the council filed a Final Amended Statement of Issues that contained 7 individual issues. These issues can be conveniently grouped into the following main areas: 1) whether the SEPP 1 objection to the FSR development standard is well founded, 2) whether the SEPP 1 objection to the density development standard is well founded, 3) whether the proposed development would generate unacceptable levels of traffic on the local road network, and 4) whether the proposed design is acceptable, considering potential privacy impacts, inadequate areas of storage, insufficient outdoor space and insufficient setbacks. The evidence 13 The parties agreed to the appointment of Mr Geoff Baker as the Court appointed urban design expert, Mr Graham Pindar as the Court appointed traffic expert and Mr Michael Nash as the Court appointed contamination expert. Mr Phillip Drew provided town planning evidence for the applicant and Ms Kristy Idle provided town planning evidence for the council on the amended plans.

14 The evidence of Mr Nash and Mr Pindar was accepted by the parties although Mr Baker, Mr Drew and Ms Idle were required for cross-examination. SEPP 1 objection to FSR development standard 15 Mr Drew and Ms Idle agree that the proposed development has a FSR of 1.0:1. Clause 41L(4) provides for a maximum FSR of 0.75:1

16 The LEP does not contain any objectives for the FSR standard so the SEPP 1 objection prepared by Mr Drew adopts the objectives for FSR from the Residential Flat Design Code. These objectives relate to: - ensuring the development is in keeping with the optimum capacity of the site and local area, - defining allowable development density for generic building types, - providing modulation and depth of external walls, - promoting thin building cross sections to maximise daylight and ventilation, - allowing generous habitable balconies. 17 The SEPP 1 objection states that compliance with the standard is unreasonable and unnecessary for the following reasons: - there is no known optimum or desirable capacity for the Mortlake point area with regard to public infrastructure, - compliance is unreasonable with regard to traffic impacts, giving traffic generation for industrial/factory development at a FSR of 1:1 generates more traffic, - the bulk, and scale of the proposal satisfies height, design and facade principles, - the proposal is 4 metres lower and provides an articulated and less bulky appearance compared to the adjoining development, - compliance is unnecessary to satisfy articulation, privacy, sunlight, day light, ventilation, and private open space requirements, - the proposal has merit with regard to its landscaped area and tree preservation compared to nearby development, - compliance is unreasonable when a FSR of 1:1 is permitted for non-residential development. 18 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state: 3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 19 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state: 5.The objects of this Act are: (a) to encourage - (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and coordination of the orderly and economic use and development of land. 20 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

21 On the second question asked in Winten, Mr Drew and Ms Idle, in their joint statement, agree that the principal purpose of the FSR standard is to have regard to bulk, scale, amenity (internally and externally), overshadowing, overlooking, landscaping and deep soil landscaping, visual form, character, and compatibility with the surrounding locality.

22 By virtue of the proposals acceptable height, number of storeys and articulated facade, Mr Drew and Ms Idle agree the proposal has an acceptable streetscape presentation to Tennyson Road. While accepting that the impact on adjoining residents and the streetscape to Bertram Street are relevant objectives, Mr Drew and Ms Idle disagree on the question of whether the proposal satisfactorily addresses these objectives.

23 Mr Drew and Ms Idle also disagree over whether the minimisation of potential traffic generation is an appropriate FSR objective. Ms Idle includes this as an objective for the FSR standard although she ranks this objective marginally below the other objectives. Her concerns over traffic generation relate to her belief that one of the purposes of the FSR control is to place an appropriate limit on the size and density of residential development to minimise cumulative impact of traffic in the locality. Mr Drew describes traffic as not a significant issue for FSR consideration.

24 Mr Pindar also addresses this matter. He relies on the councils 1999 Mortlake Point Planning Study that examines the traffic capacity of Mortlake Point under various residential density scenarios. The report establishes that the "break-even" point at which residential traffic equals the existing industrial traffic is at a density of about 60 dwellings per hectare. Mr Pindar notes that this does not take into account the type of traffic being generated, just the number of trips being generated. In his opinion, the removal of heavy industrial traffic has considerable community benefit in terms of approved amenity, safety and road capacity. On this basis, he estimates the sustainable density to be in the order of 70 dwellings per hectare, although he concedes that this will need to be further considered by the council.

25 He also expresses the view that if future development results in an average density of about 70 dwellings per hectare across Mortlake Point this would be a cause for concern as it would result in a deterioration in existing traffic conditions. On this basis, the proposed density of 93 dwellings per hectare is of concern if it forms a precedent for widespread adoption. On balance however, Mr Pindar does not consider that the subject proposal will form a precedent.

26 At this point, the adequacy of the councils planning controls makes the assessment unnecessarily complex. While the Mortlake Point Planning Study and Mr Pindar approach the question of local road capacity through density, the evidence before the Court indicates that the density standard is a requirement that has been largely abandoned by the council in favour of the FSR standard in the assessment of any application for Mortlake Point. The council helpfully tendered, as part of Ms Idle's evidence, a table showing recent applications and determinations (see Attachment 1) that confirms the council's approach of relying the FSR standard while giving little weight to the density development standard.

27 Even though Mr Pindar and the Mortlake Point Planning Study address density, I accept that there is a relationship between floorspace and increased population (and consequently increased traffic) although it has not been quantified in the same manner as density. Because there was no dispute that the Mortlake Point area has constraints on the capacity of the local roads to deal with the increased traffic, I agree with Ms Idle that the potential traffic generation and its impact on the local roads is a relevant objective of the FSR standard.

28 The third question asked in Winten is whether compliance with the development standard is consistent with the aims of SEPP 1 and does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. The fourth question in Winten asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. It is convenient to answer these questions together.

29 SEPP 1 aims to provide flexibility in the application of planning controls where strict compliance is unreasonable or unnecessary. The judgement of Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported) contains a number of important principles for the consideration of a SEPP 1 objection. These principles are still relevant and are addressed in Winten. They can be summarised as follows: - there are no limits to the dispensing power of SEPP 1, - it is not sufficient to merely point to the absence of environmental harm to found an objection, - it must be assumed that a development standard has a purpose, - it is not to be used as a means to affect general planning change.

30 In my view, the applicant has provided no adequate reasons why it was unreasonable or unnecessary to comply with the FSR development standard.

31 The SEPP 1 objection provides objectives for the standard from the Residential Flat Design Code. These objectives are overly general and do not necessarily reflect the particular objectives for the standard in Mortlake Point. The reasons given that compliance with the standard is unreasonable and unnecessary are largely inconsistent with the principles in Hooker. They rely on a lack of environmental impact or a comparison with the 1:1 FSR for industrial/ factory development rather than why the development standard is unreasonable and unnecessary in this particular case.

32 The deficiencies in the SEPP 1 objection were rectified in the joint statement and there was general agreement between Mr Drew and Ms Idle on the objectives for the standard, with the exception of some amenity and streetscape issues and the traffic generation potential based on the additional floor area.

33 In light of the development standard objectives and for the reasons set out later in the judgement (see pars 48 to 50) I accept that the proposal is consistent with the objectives relating to the impact on adjoining residents and the impact on the streetscape to Bertram Street through the amended plans and additional refinements suggested by Mr Baker.

34 In relation to the objective relating to the potential for additional traffic, I accept Ms Idles evidence that the proposal is inconsistent with this objective. Even though Mr Pindars evidence relates to density, his evidence indicates that there is a "break-even" point where traffic becomes a concern. Having found that that there is a relationship between floorspace and increased traffic, and in the absence of any other evidence, it is reasonable that the appropriate "break-even" point should be at the FSR standard. It is the adopted standard and consequently it must be given some weight. 35 While Mr Pindar ultimately accepted that the proposal was acceptable on traffic grounds, this acceptance was conditional upon the proposal not creating a precedent for other similar developments. With respect, I do not agree with this conclusion.

36 Precedent is a valid planning consideration (Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75). In this case, the evidence suggests that the development applications have already been lodged with the council, and ultimately refused, for proposals with an FSR generally greater than 0.75:1 (see Attachment 1). Additionally, the Court was advised that three development applications have been received, but not determined that also have an FSR greater than 0.75:1. In my view, the approval of this application could be reasonably seen as abandoning the FSR development standard, particularly as the site had no features that could be seen as a constraint on its future development. While each application would need to be considered on it's individual merits, I acknowledge that the council would have great difficulty in refusing other similar applications if the SEPP 1 objection was supported by the Court in this case.

37 The proposed development seeks a 33% increase in floor area from that provided by the LEP. In my view, this increase is significant and falls within one of the principles established in Hooker; that being that the SEPP 1 process is not to be used as a means to affect general planning change.

38 I also see no reason why some weight should not be given to the consistent approach taken by the council in the use of the FSR standard in the determination of development applications in the Mortlake Point area. The council has consistently enforced the 0.75:1 FSR development standard apart from a small number of applications where the 0.75:1 FSR was exceeded by a small amount. 39 The importance of consistency in the context of a planning appeal is highlighted in the judgement of Pain J in Stadurn Pty Limited v Blacktown City Council [2004] NSWLEC 348 with a reference to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 where Brennan J states; One of the factors to be considered in arriving at the preferable decision in a particular case is its consistency with other decisions in compatible cases… 40 The fifth question asked in Winten is whether the objection is well founded. For the reasons mentioned in the preceding paragraphs, this question must be answered in the negative. The consequence of this finding is that the appeal must be dismissed and the development application refused

41 For completeness, I will briefly deal with the other issues. SEPP 1 objection to density development standard 42 Mr Drew and Ms Idle agree that the density of the proposed development is 93 dwellings per hectare. Clause 41L(3) provides for a maximum 35 dwellings per hectare.

43 While the departure from the density development standard was an issue raised by the council, Ms Idle states that the council has placed little emphasis on strictly enforcing the density development standard. Mr Jackson in his opening submission, also acknowledges that the council has not consistently applied the development standard and greater weight has placed been placed on the FSR development standard in the assessment of development applications.

44 In considering these comments, the judgement of Stein J in North Shore Gas Co. North Sydney Municipal Council (Unreported 15 September 1986) is relevant. In this case, His Honour found that compliance with a development standard was unnecessary and unreasonable as the standard had been virtually abandoned or destroyed by the council.

45 In my view, a similar conclusion can be reached in this case. Attachment 1 clearly indicates the significant departures from the density development standard.

46 Consequently, I find that compliance with the density development standard is unreasonable and unnecessary in this instance, as the standard has been abandoned by the council. Traffic 47 This issue is addressed as part of the consideration of SEPP 1 objection to the FSR development standard (see pars 24 to 27). The amended design 48 Mr Baker describes the amended application as a significant improvement over the original proposal. He acknowledges the fundamental design strategy of running the building east-west across the site so that its long facade faces north thereby maximising solar penetration in winter and optimising control of sun penetration in summer. Adequate separation is provided from the adjoining development at 46 Tennyson Rd. and there are sufficient setbacks on the south side of the proposed development to ensure the same level of separation in the event that the adjoining properties are redeveloped as housing. He describes the streetscape elevations as modest when seen in their context. Mr Baker recommends a number of readily achievable refinements to the amended plans.

49 While coming to conclusion that the proposed development is acceptable in urban design terms, he notes that the issue of appropriate density involves considerations at a district scale and that he is unable to assess this matter under the scope of his brief.

50 At the hearing, Mr Baker explained the refinements recommended to the plans in his report and how they related to the requirements in the Residential Flat Design Code. With the benefit of this explanation, I accept that the proposed development generally satisfies the requirements of SEPP 65 and the Residential Flat Design Code. I also accept that where total compliance is not achieved, the departure is not of such significance as to warrant the refusal of the application. Orders 51 For the foregoing reasons, the Orders of the Court are: 1) The appeal is dismissed. 2) Development Application 870/03 for the demolition of an existing factory building and the erection of a three-storey residential flat building at 40-44 Tennyson Road and 11-15 Bertram Street, Mortlake is refused. 3) The exhibits are returned.

      G T Brown
      Commissioner of the Court

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.