Dryve Clean Pty Ltd v Waverley Council

Land and Environment Court (NSW)|2015-12-15

JUDGMENT

These proceedings are an appeal to the Court under s. 97 of the Environmental Planning and Assessment Act 1979 (EPA ACT) by the applicant company from the deemed refusal by Waverley Council of its development application numbered DA621/2014 for the demolition of the existing building on the land known as 1 to 5 Bronte Road, Queens Park (lot 1 in DP 120589) and for the construction of a four-storey boarding-house and basement car park on the land.

Background:

In the initial stages of the proceedings a conciliation conference under section 34 of the Land and Environment Court Act 1979 (Court Act) was directed to be held before me. Numerous public submissions were received both in writing and orally during the conciliation process. The respondent Council prepared and filed prior to the section 34 Conciliation Conference a statement of facts and contentions which identified several issues with respect to the proposal. The company sought and was granted leave on two occasions to amend the development plans in order to address the issues raised by the council and members of the public. On each occasion a further opportunity for public submissions to the amended plans was provided.
The issues raised by those who made submissions included concerns as to the nature and future conduct of the boarding house occupants and their impact on the local residential area; height of the building; insufficiency of car parking, congestion and traffic impacts; noise impacts; need for a plan of management; setbacks; floor space ratio; overlooking from roof terraces and external passageways and stairs; consistency with the character of the area; and heritage conservation.
Subsequently, in accordance with section 34(4) (b) of the Court Act I terminated the conciliation process and the parties consented to me later disposing of the proceedings following a hearing before me. This judgment contains the reasons for my decision as required by s.34 (5) of the Court Act.
By the date of the hearing the Council had become satisfied that the amended plans of the development had addressed all of its earlier concerns with the proposal and it had no objection to the grant of development consent by the Court, subject to the proposed agreed conditions of consent being imposed.
In these circumstances, I need to be satisfied that the grant of consent would be lawful and appropriate having regard to the whole of the relevant circumstances, including all of the public submissions and the proposed conditions of consent and the matters for consideration under s.79C of the EPA Act.

The site

The site is irregular in shape with a northern frontage to Birrell Street of 25.285 m, an eastern frontage to Bronte Road of approximately 19 m, a southern boundary of 43.43 m, and a western frontage to Blenheim Street of 12.955 m. The total site area is 423.7 m².
The site slopes downwards from Bronte Road to Blenheim Street with a fall of 3.55 m along the southern boundary from Bronte Road (AHD 84.98) to Blenheim Street (AHD 81.43).
Along the Birrell Street frontage, the site falls 2.13m from Bronte Road (AHD 84.85) to Blenheim Street (AHD 82.32). Across the centre of the site there is a cross fall of 1.63m (AHD 83.43 to AHD 81.80).
The site is presently occupied by a two level early 20th Century retail building comprising ground and lower ground floors set into a previous quarry working extending around the corner site with a rear parking area accessed from Blenheim Street.

The Locality

The site is located adjacent to the Blenheim Street Conservation Area, is situated at the northern tip of the Blenheim Gully Landscape Conservation Area, and is diagonally opposite Waverley Telephone Exchange (an item of local heritage significance).

The Planning Controls

The principal planning instruments relevant to the development application are: State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP (ARH)) State Environmental Planning Policy 65 - Design Quality of Residential Flat Development Waverley Local Environmental Plan 2012 (WLEP) Waverley Development Control Plan 2012 (WDCP)
The site is zoned R3 - Medium Density Residential under WLEP.

Evidence

On the hearing an agreed expert town planning position paper of Mr G. Shiels for the applicant was tendered. This was countersigned by Mr L. Kosnetter, the Manager, Development Assessment of Waverley Council. This reviewed the town planning contentions for each of the key issues in the case.
An expert acoustic report of Acoustic Logic dated 19/08/2015, filed 4/12/2015 was also tendered. This assessed the external noise intrusion as well as likely noise emissions from the site caused by mechanical plant and residents, including noise emissions from the common areas and the private roof terraces. It concluded that the acoustic impacts of the development on the neighbouring residential receivers, having regard to recommended acoustic screening, would reduce impacts on the residents of 2 Blenheim Street and improve their acoustic amenity at all times, and that the use of the proposed development was not predicted to result in any unreasonable acoustic impact on the surrounding receivers.
The agreed conditions of consent required that the acoustic treatment of the proposed buildings must implement the recommendations of Acoustic Logic and meet the construction requirements of Council prior to the issue of the Construction Certificate.
A heritage impact statement prepared by Hill Thallis Architecture and Urban Projects dated 19/12/2014 was also tendered. This assessed the impact of the proposed development on the landscape conservation area under WLEP in which the land is located , the adjacent General Conservation Area (C1) comprising the block surrounded by Birrell Street to the north, Blenheim Street to the east, Isabella Street to the West and Cuthbert Street to the south, and a number of listed heritage items nearby, including the inter-war period Waverley Telephone Exchange on the diagonally opposite (north-east) corner of the Bronte Road/Birrell Street intersection and numbers 1 and 3 Blenheim Street. It concludes that the land, which currently has no landscaping, will be improved in terms of landscape character by the high quality landscape plan that has been prepared by a recognised Landscape Architect including deep soil plantings, which will strengthen the relationship of the site to the landscape conservation area. The authors also consider that due to the stand-alone nature of the site and its prominent corner position, the proposal will not have any negative heritage impact, but rather, the relationship of the proposal to the context was considered to be an improvement on the existing conditions and therefore was a positive urban and heritage contribution responding appropriately to the cultural significance of the site and urban location.

Permissibility

Under the R3 Medium Density Residential zone under WLEP, boarding houses are permissible with development consent. Also, clauses (26) - (28) of SEPP (ARH) expressly permit boarding houses on the land with consent by virtue of its R3 Medium Density Residential zoning.
In addition, the aims of SEPP (ARH) include "to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards." (Clause 3 (b)).
The relevant objectives of the R3 Medium Density Residential zone are : .to provide for the housing needs of the community within a medium density residential environment; .to provide a variety of housing types within a medium density residential environment; .to enable other land uses that provide facilities or services to meet the day-to-day needs of residents.
SEPP (ARH) has primacy since it: .prevails over any other local environmental plan or environmental planning instrument to the extent of any inconsistency: see clause 8, and section 36 of the EPA Act 1979; and .prevails over any development control plan to the extent of any inconsistency: see section 74C (5) of the EPA Act

Development Standards

SEPP (ARH) provides for development "bonuses" and for certain development standards in an LEP not to be used as grounds for refusal of certain boarding house development applications.

Floor Space Ratio (FSR)

Relevantly, the current plans indicate that the FSR of the proposal is 1.314:1. This was obtained by taking the maximum FSR allowed by clause 4.4(2) coupled with the FSR map in WLEP. The maximum FSR allowed for the site under these provisions is 0.9:1. However, a bonus of an additional 0.5:1 is given by clause 29 (1) (c) (1) of SEPP (ARH) thereby allowing a maximum FSR for the proposed boarding house of 1.4:1. As the proposal is below 1.4:1 FSR it is permissible under that standard. The bonus is allowed where, as in this case, the land is within a zone in which residential flat buildings are permitted, the land does not contain a heritage item identified in WLEP or in the State Heritage Register, and the existing maximum FSR is less than 2.5:1. Accordingly, the proposal easily complies with the floor space ratio requirement.

Building height

As to building height, subclause 29(2) (a) SEPP (ARH) provides that the consent authority must not refuse consent to boarding house development on the ground of building height if the building height of all proposed buildings is not more than the maximum height permitted under another environmental planning instrument for any building on the land. By reference to clause 4.4(2) and the height of buildings map forming part of WLEP, buildings up to 12.5 m in height are permitted on the land for boarding house development.
The definition of "building height" contained in WLEP relevantly provides: "building height" (or "height of buildings") means the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, and antennae…… chimneys, flues and the like. The phrase "Ground level (existing)" is defined to mean "the existing level of a site at any point".
It is accepted by the applicant that the final amended plans will result in a building that exceeds 12.5 m in height. The precise extent of the excess will depend on the interpretation and application of these definitions. On one view, being that advanced by the applicant, the excess height is caused by a triangular sliver of the rooftop of one of the buildings situated towards the middle of the site as shown in the elevation plans. At its highest it is about 600 mm above the permitted height, but has little environmental impact. On the Blenheim Street, Boundary the 12.5m height limit is observed. This alternative measures building height above street level along the sloping boundaries of the site. However, measuring from the lowest point of the existing basement on the site would result in a greater nominal excedance in the order of 2.6m on the northern side of the building towards Birrell Street. At the Birrell Street frontage, the proposed building adjacent to Blenheim Street readily complies. The upper level of the building adjacent to Bronte Road exceeds the height limit by between 2.5m and 2.7m. At the Blenheim Street boundary, the proposal complies with the 12.5m height limit. Mr Sheils' evidence is, and I accept, that the environmental impacts of the development are acceptable and that the amenity of surrounding residences will be maintained whichever of these two approaches apply. The alternative positions are depicted in elevation on the amended development plans. However clause 29(4) of SEPP (ARH) provides: "a consent authority may consent to development to which [Division 3 - Boarding Houses] applies whether or not the development complies with the standards set out in subclause (1) or (2)". Subclause 29 (1) deals with FSR and Subclause 29(2) (a) deals with building height.
It has been held by Acting Senior Commissioner Brown in Panarea Investments Pty Limited v Manly Council (2015) NSWLEC 1026 (26/2/2015) at [49] that clause 29 (4) of SEPP (ARH) allows the court to determine whether a proposed variation to the height standard in a local environmental plan is appropriate but that the use of clause 29 (4) was not unfettered and must come with some consideration of the variation sought. In that case the applicant had provided a clause 4.6 written request under Manly LEP (2013) seeking to vary a building height standard. The identical clause 4.6 is contained in WLEP. In the Panarea case the applicant had provided the clause 4.6 request not as its principal position, which was that consent was warranted using clause 29(4), but as an alternative submission. The same course has been adopted by the applicant in the present case. The Acting Senior Commissioner took account of the points made in the clause 4.6 request for the purpose of considering the exercise of the discetion under clause 29(4) and found that compliance with the height standard was unreasonable or unnecessary and that it demonstrated that there were sufficient environmental planning grounds to justify the non-compliance of the height standard under the Manly LEP. The variation request assisted in reaching the decision to favourably exercise the discretion under clause 29(4) of SEPP (ARH) and grant consent notwithstanding the non-compliance with the LEP height limit.
The operation of clause 29(4) adopted in the Panarea case has also been followed by Commissioner Hussey in Beresford Property Development Pty Limited v City of Canada Bay [2015] NSWLEC 1118 (17/4/2015) at [21], [22] and by Commissioner O'Neil in Fox Johnston Pty Limited v Randwick City Council [2016] NSWLEC 1006 (5/1/2016) at [17].
In the present instance the applicant has contended that the clause 4.6 variation request tendered by the applicant demonstrates that compliance with the building height development standard under WLEP would on merit be unreasonable and unnecessary because:

the objective of the height of buildings standard in clause 4.3 of WLEP of "preserving the environmental amenity of neighbouring properties" has been shown by the expert evidence to have been achieved;
the independent Design Review Panel had given favourable comment on the design of the original proposal and the subsequent amendments had reduced the impact of the development;
there are a number of buildings in the surrounding area which are four or five stories in height;
measuring height from the basement thwarts the standard;
there are sufficient environmental planning grounds to allow the variation in height as argued in the clause 4.6 variation request;

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Cases Cited (9)