Eunomia Development Pty Limited v Sydney City Council

The site and its context

1. The site comprises two adjoining allotments known as 2-16 Mitchell Road (Lot 1 in DP 669038) and 18-24 Mitchell Road (Lot 100 in DP 1031123), Alexandria. The lots have areas of 1062sqm and 1020sqm respectively and form a triangular shaped site with a primary frontage of 92.42m to Mitchell Road and secondary frontage of 63.9m to Wassall Lane.
2. The site contains 3 buildings, 2 on 2-16 including a part 1, part 2 storey commercial building that was constructed as a bank at the northern tip of the triangle and a 2 storey warehouse building at the southern end. The former bank building is currently used as a recording studio at the ground floor level with a residential apartment located the first floor level. The warehouse building and the adjoining warehouse building at 18-24 Mitchell Road are also used as a recording studio.
3. To the west of the site on the opposite side of Mitchell Road there are single and 2 storey dwellings and a number of heritage buildings including a 2 storey terrace dwelling that is currently used as a café and a former church and church hall.
4. To the south of the site there are single and 2 storey residential terrace dwellings that have their primary frontage to Anderson Street. Properties known as 15-39 Anderson Street share a rear boundary with the site. A 3 storey residential apartment complex is located at the corner of Mitchell Road and Anderson Street.
5. Development to the east of the site on the opposite side of Wassall Lane comprises single and 2 storey residential terrace dwellings that have their primary frontage to Phillips Street. The majority of those properties with a rear boundary to the laneway use the lane for vehicular access to either garages, carports or open parking spaces. Studios have been erected above some of those garages.
6. Wassall Lane is a 'dead end' laneway and has a width that varies from 4.3m to 4.9m.

Background and the proposal

1. The development application as lodged with the council proposed the adaptive reuse of the former bank building as two apartments and the demolition of the warehouse building and construction of a 4 storey residential flat building containing 28 apartments over a new 2 level basement for parking 39 vehicles.
2. As a result of discussions held during and subsequent to the conciliation conference, the applicant prepared amended plans.
3. Those plans now before the Court propose the adaptive re-use of the existing 2 storey former bank building with ground level space suitable for future commercial use and a 2 bedroom apartment at first floor level. Demolition of the two warehouse buildings is proposed with the construction of a 3 storey residential flat building with a mansard roof form at Wassall Lane. The overall development would contain 29 apartments (2 x 1 bedroom, 7 x 2 bedroom and 20 x 3 bedroom) and one commercial tenancy over 2 levels of basement parking for 39 vehicles.

The planning controls

1. The site is zoned B4 Mixed Use under the provisions of Sydney Local Environmental Plan 2012 (LEP). The proposed use is permissible with consent in that zone. Clause 2.3(2) of the LEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the B4 zone are: •To provide a mixture of compatible land uses. •To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. •To ensure uses support the viability of centres.
2. Part 4 of the LEP relates to Principal development standards with clauses 4.3, 4.4, 4.5 and 4.6 relevant to the application.
3. Clause 4.3 and its associated maps establish a maximum building height of 12m. The majority of the building complies with that standard however the stair access to the rooftop common open space area and pergolas to be constructed as part of the roof top private open space areas to 4 of the apartments exceed that height. The applicant relies on an objection to that standard pursuant to the provisions of clause 4.6 of the LEP.
4. Clause 4.4 provides maximum floor space ratio (FSR) standards and there are 2 different standards that apply to the site. The northern section of the site, Lot 1 has a maximum FSR of 1.75:1 and the southern portion, Lot 100 has a Maximum of 2:1.
5. Clause 4.5 provides for the calculation of floor space ratio and site area and is in the following form: 4.5 Calculation of floor space ratio and site area (1) Objectives The objectives of this clause are as follows: (a) to define floor space ratio, (b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to: (i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and (ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and (iii) require community land and public places to be dealt with separately. (2) Definition of "floor space ratio" The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be: (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out. In addition, subclauses (4)-(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development. (4) Exclusions from site area The following land must be excluded from the site area: (a) land on which the proposed development is prohibited, whether under this Plan or any other law, (b) community land or a public place (except as provided by subclause (7)). (5) Strata subdivisions The area of a lot that is wholly or partly on top of another or others in a strata subdivision is to be included in the calculation of the site area only to the extent that it does not overlap with another lot already included in the site area calculation. (6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot. (7) Certain public land to be separately considered For the purpose of applying a floor space ratio to any proposed development on, above or below community land or a public place, the site area must only include an area that is on, above or below that community land or public place, and is occupied or physically affected by the proposed development, and may not include any other area on which the proposed development is to be carried out. (8) Existing buildings The gross floor area of any existing or proposed buildings within the vertical projection (above or below ground) of the boundaries of a site is to be included in the calculation of the total floor space for the purposes of applying a floor space ratio, whether or not the proposed development relates to all of the buildings. (9) Covenants to prevent "double dipping" When development consent is granted to development on a site comprised of 2 or more lots, a condition of the consent may require a covenant to be registered that prevents the creation of floor area on a lot (the restricted lot) if the consent authority is satisfied that an equivalent quantity of floor area will be created on another lot only because the site included the restricted lot. (10) Covenants affect consolidated sites If: (a) a covenant of the kind referred to in subclause (9) applies to any land (affected land), and (b) proposed development relates to the affected land and other land that together comprise the site of the proposed development, the maximum amount of floor area allowed on the other land by the floor space ratio fixed for the site by this Plan is reduced by the quantity of floor space area the covenant prevents being created on the affected land. (11) Definition In this clause, public place has the same meaning as it has in the Local Government Act 1993.
6. There is a dispute between the parties as to whether the FSR of the development is compliant with the FSR control however, the applicant has also lodged an objection to the standard pursuant to clause 4.6 of the LEP in the event that the Court finds that the FSR exceeds that standard. The difference between the parties is whether balcony areas that incorporate a terra cotta blockwork façade are included in the gross floor area and how the site area is calculated pursuant to clause 4.5 and applied to the two different FSR development standards.
7. The site does not contain any heritage items however, it is located with the C1 Alexandria Park heritage conservation area with 2-16 Mitchell Road being listed as a contributory building and 18-24 as a neutral building in the development control plan. The site is opposite two heritage items. Pursuant to clause 5.10(4) of the LEP the consent authority must consider the effect of the proposed development on the heritage significance of the item or area concerned. The council has not raised any heritage contentions and is satisfied that the development is appropriate in this context.
8. Clause 7.5 establishes maximum car parking that can be provided on the site for residential flat buildings and the application provides for that maximum number.
9. Sydney Development Control Plan 2012 (DCP) applies to the site which is within the Alexandria and Wyndham Street Locality as detailed in Section 2.7.7, specifically within the Alexandria Park residential neighbourhood. The relevant description is as follows: The predominant residential character of Alexandria Park neighbourhood with wide tree lined streets and views to Alexandria Park, shall be retained. It will retain the diversity of building types and scales that give it its unique character. Older warehouse buildings add interest to the otherwise residential character and adaptive re-use is encouraged. The consistency of terrace and cottage rows; their scale and proportion, roof design, materials palette and intact rear laneways is very important to the quality of the streetscape and are to be retained.
10. The relevant principles for the locality are: (a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles. (b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes. (c) Protect and enhance views from Phillips, Gerard and Garden Streets to Alexandria Park. (d) Retain and restore traditional strip retail buildings to enliven streetscape. (e) Within the Alexandria Park area: (i) retain the fine grained residential subdivision pattern by not permitting further amalgamation of lots; (ii) retain the predominantly low scale of built form (one to two storeys) and the consistency of building types including setbacks and building alignments; (iii) protect the visual appreciation of heritage and contributory items by designing infill to respond to height, massing, predominant horizontal and vertical proportions of existing buildings as well as design elements of adjacent dwellings; (iv) ensure residential infi ll development has an active street address to enable the passive surveillance of the street; (v) encourage vehicle access to lots from rear where possible; and (vi) encourage timber panel lift garage doors to better respond to the original character of timber rear fences.
11. At the date of lodgement of the application the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP65) and the associated Residential Flat Design Code (RFDC) were and remain relevant considerations in the determination of the application.
12. There are no contentions that other relevant legislation is not met through the information provided with the application.

The issues

1. The contentions in the case are detailed in the Council's Statement of Facts and Contentions (Exhibit 3). Mr Seymour, for the council, advises that as the result of the amended plans, none of the contentions are pressed.
2. The town planning experts, Ms A Sutherland for the applicant and Mr A McKeown for the council provided a position paper (Exhibit 4) that addressed each of the original contentions and explained how these had been resolved.

The evidence

1. The conciliation conference had commenced on site with evidence heard from a number of objectors to the proposal. The view included observation of the site from a number of properties in both Phillip and Anderson Streets where the owners explained their concerns.
2. The council notified the amended plans and received further objections. Those objections are contained in the council bundle, Exhibit 1. Four objectors provided evidence during the hearing. The issues raised are summarised as follows:

• Development is too big and has adverse privacy and overshadowing impacts;
• Development should not exceed height controls;
• Rooftop terrace areas will create adverse amenity impacts through noise;
• Wassall Lane is too narrow for two way traffic and the increase in traffic along that lane will result in safety issues; Mitchell Road should be used for vehicle access;
• Additional traffic generated by the development will add to existing high volumes in the area;
• Lack of parking will further challenge residents who rely on street parking;
• Height is excessive for a predominantly one and two storey area;
• Concerned about security when boundary wall is demolished;

1. The planning experts provided evidence to assist the Court in relation to the issues raised by the objectors. In regard to the bulk and scale of the building they had prepared a table that shows the different interpretation of the FSR calculations. That table is found in clause 2.1.2 of Exhibit 4 and shows, if the different FSR development standards were applied to the separate allotments the FSR of the development over Lot 1 would be 2.15:1 whereas the development standard is 1.75:1 and the FSR across Lot 100 would be 1.35:1 with a 2:1 standard applying. The table includes an average across the site of 1.75:1. The figures include the external balconies with the terra cotta blockwork facades and, if they were to be deleted the gross floor area would reduce by 131sqm however, it still would not be compliant if the calculations were done on the individual Lot 1.
2. The parties agreed that I need not determine the correct application of clause 4.5 of the LEP because the experts agree that the objection to the FSR development standard lodged pursuant to the provisions of clause 4.6 is well founded and compliance with the development standard would be unreasonable and unnecessary in the circumstances of the case.
3. They consider the density of development on the site, the built form including building bulk and land use intensity is acceptable. They have summarised the reasons as follows:

• The development would be compliant across an "averaged" site area;
• The applicable maximum car parking requirement is met;
• the development will not result in vehicular or pedestrian traffic which exceeds that which could reasonably be anticipated for the site;
• The development can be adequately serviced by utilities and existing and planned infrastructure;
• The proposed development proposes an acceptable built form noting that the development complies with the objectives of the applicable height of buildings development standard, the DCP Building height in Storeys control and Street frontage Height in Storeys control;
• The proposal provides an appropriate response to the contributory item which is to be retained a 2-16 Mitchell Road;
• There has been a significant reduction in the visual bulk and scale of the development when viewed from the east with the form and scale appropriate notwithstanding a variation to the FSR control for 2-16 Mitchell Road;
• The development reflects the desired built form character of the locality which is in a period of transition from a residential and commercial/industrial environment along Mitchell Road to a higher density mixed use environment with a large proportion of each development devoted to residential development;
• The proposed distribution of floor space across the site has been designed to provide an appropriate urban design response to the retention of the existing contributory item on the corner of Mitchell Road and Wassall Lane and to respond to site constraints including the triangular shape of the site;
• The proposal minimises impacts on the amenity of the adjoining properties to the south by concentrating building bulk at the northern end of the site;
• The proposed variation to the FSR control at 2-16 allows for appropriate massing of the built form on the site and reduces the impacts on the adjoining properties. Strict compliance with the FSR control would necessarily concentrate additional building bulk at the southern part of the site (18-24) and would result in a development with even greater impacts in relation to overshadowing and visual bulk for neighbouring dwellings located to the south of the site;
• The variation proposed on Lot 1 is more than offset by the reduced floor space proposed on Lot 100 and the density of development tan yield proposed is consistent with that which is anticipated for the site by the applicable FSR control.

1. Similarly, the experts have considered the variation to the height of buildings development standard of 12m. They agree that the proposal exceeds the standard as follows:

• The lift core which provides access to the roof top communal open space which exceeds the maximum height by 1.72m;
• The pergola over the roof top terrace of apartments S26, S27, S28 and the stairwell structures which provide access to these roof top terraces. The exceedance is 0.67m.

1. A written request has been prepared that seeks to justify the variation. The experts agree that compliance with the development standard would be unreasonable and unnecessary in the circumstances of the case and in particular for the reasons outlined above when addressing building height and because:

• The variation to the height control on the site does not result in any significant adverse impacts to the adjacent sites, as the building elements that do not comply are set back from the boundary and the Mitchell Road and Wassall Lane facades of the building;
• Compliance with the standard would result in a development with reduced amenity for its occupants. The roof top shade structures and the access to the communal area are essential to the amenity of the occupants of the development;
• The proposal is consistent with the objectives of the zone and objectives (a) and (b) of the development standard and there is an appropriate transition between the height of the new development and the contributory item in the heritage conservation area that is to be retained on the site;
• It is also consistent with objectives (c) and (d) of the standard as it will not have any significant impacts on existing views across the site and because the site is separated from, it will not have any significant impacts on the Green Square Town Centre.

1. The experts also agree that the development is sufficiently articulated with an appropriate massing in the context of the streetscape whilst providing adequate casual surveillance over the streetscape. The provision of a retail/commercial use on the ground floor of the former bank building is consistent with the objectives of the B4 zone as is the provision of a false floor for the apartments with street frontage to Mitchell Road that would allow each owner to convert their apartment to a commercial use.
2. In terms of compliance with the DCP controls and built form generally, the experts agree that the proposal increases the setback of Levels 2 and 3 from the eastern boundary to 3m to comply with the street frontage height requirements with a 2 storey street wall height along Wassall Lane. This delivers a predominantly low scale built form and consistency of building types including setbacks and building alignments.
3. Overlooking has been addressed through the provision of 1.5m high privacy screens along the eastern side of the terraces of apartments S22, S23 and S24 to mitigate the potential for overlooking of the properties to the east. The windows to the east facing bedrooms of Apartments S22, S23 and S24 incorporate opaque glass to a height of 1.6m above the floor level to mitigate the potential for views to the dwellings to the east. Those apartments prevent the direct overlooking of the properties located to the east of the site by screening the majority of the roof top communal open space. They agree that the amended plans satisfactorily address contention 5 - Built Form.
4. Contention 6 related to building design and residential amenity and the experts agree that additional detail provided including privacy screens as proposed combined with separation distances adequately provide for visual and acoustic privacy for occupants. Apartments are cross ventilated due to the internal courtyard design and the level and solar access available to communal open space provides adequate outdoor space for residents without having any significant visual or acoustic privacy impacts on neighbouring dwellings that have frontages to Phillips and Anderson Streets. Further changes made and details provided have satisfied the experts that the apartments will provide satisfactory amenity to occupants without adversely affecting the amenity of adjacent residents.
5. In terms of overshadowing, the experts explained the impacts on adjacent properties. Mr McKeon agrees that there will be some impact to the rear yards of properties that front Anderson Street however says that the bulk of the building has been moved further north to minimise that impact and good solar access to the rear doors and windows of the dwellings would be available. He considers that the sites are "highly vulnerable" to overshadowing and because the development in the location which produces the impacts is development that is compliant with the building height development standard the impact is acceptable.
6. Mr McKeon says that the collection of waste has been addressed to the council's satisfaction with collection from Wassall Lane and, through the location of the access driveway at the far end of that lane, it provides for a better turning area than is presently available.

Conclusion and findings

1. Compliance with the development standards for FSR and building height, or in the alternate, a finding that the provisions of clause 4.6 of the LEP are met is a pre-requisite to grant of consent. As detailed above, there is a dispute between the parties if the FSR standard is met. That dispute centres on the interpretation of clause 4.5 of the LEP and in particular the definition of site area and how the two different FSR provisions are applied across the site area.
2. Having regard to the submissions made in relation to this matter, it is apparent to me that the council's interpretation and the intention of the clause may vary. However, in this case and with the benefit of an objection to the FSR lodged pursuant to the provisions of clause 4.6, I do not have to determine that matter. The parties' experts have provided evidence in relation to the variation to the FSR and also the building height development standard. I have reviewed that evidence and importantly, the written objection.
3. Clause 4.6 is in the following form: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence…………..
4. This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3) and the fourth, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.
5. Having regard to the evidence and in particular to the written objections prepared, I am satisfied that these tests have been met. This is particularly the case because the agreed position of the experts is that it is appropriate that the development standards for building height and, if necessary, FSR are varied and that the marginally higher built form within the centre of the site is appropriate and that the bulk of the building is better located to the north so as to reduce the impact on adjoining properties to the south. In the circumstances of the case I accept the agreed position of the experts and that expressed by Ms Sutherland in her written objection, that compliance with the height of buildings and FSR development standards would be unreasonable and unnecessary in the circumstances of the case.
6. Further, having regard to the shape and location of the site I am also satisfied that the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard.
7. I must also be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. The objectives of the B4 zone are detailed above at [13] and in this regard, I accept the evidence of the experts and also that expressed in the written objection that these objectives are met.
8. The objectives of the height of building development standard are: (a) to ensure the height of development is appropriate to the condition of the site and its context, (b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, (c) to promote the sharing of views, (d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas, (e) in respect of Green Square: (i) to ensure the amenity of the public domain by restricting taller buildings to only part of a site, and (ii) to ensure the built form contributes to the physical definition of the street network and public spaces.
9. The objective of the FSR development standard are: (a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.
10. It is apparent from the evidence that it is appropriate to vary the building height in the circumstances of the case and that this would satisfy the objectives of the development standard, particularly in terms of the context of the site and its proximity to heritage items and contributory items. There are no view impacts nor conflicts with development in Green Square.
11. Similarly, I am satisfied that the FSR of the development is appropriate, particularly having regard to the fact that if it were averaged across the site area it would be less than permitted applying the two different standards on each allotment. I accept the expert evidence that the density, built form and land use intensity is appropriate and consistent with the desired character of the locality. The council's DCP control limits the vehicle generation to acceptable limits.
12. There are no matters of significance for State or regional environmental planning, and, based on the evidence, no public benefit of maintaining the development standards in the circumstances of the case.
13. For these reasons, I am satisfied that it the provisions of clause 4.6 are met and that the site can support the higher building with the floor space as proposed.
14. Having found this particular precondition to consent is met, it is necessary to consider those matters proscribed in s79C of the Environmental Planning and Assessment Act 1979 (EP&AAct). I accept the evidence of the experts that the development is consistent with the relevant planning instruments, development control plans and other documents listed in s79C(1)(a), that the likely impacts of the development are acceptable and the site is suitable for the development as proposed.
15. In relation to those matters raised by objectors and the public interest generally, I have addressed the scale of development above. In relation to privacy and overshadowing impacts, I accept the evidence of the planning experts that these are satisfactorily mitigated, particularly having regard to the height of the building adjacent to the southern boundary which is considerably lower than the 12m development standard provides for.
16. The conditions of consent address potential amenity impacts through noise and whilst I note the concerns regarding on street parking, I accept the development provides the maximum onsite parking permitted under the DCP and that residents will not be eligible to participate in the resident parking scheme. The site is in close proximity to a range of public transport options.
17. I also accept Mr Hazell's expert evidence that Wassall Lane is of sufficient width for two way traffic and the increase in traffic along that lane will not result in safety issues. The additional traffic generated by the development will add only 25-30 vehicles per hour in peak periods which is within the capacity of the road network.
18. The council has prepared a further condition (condition 23A) that addresses the concern about security when boundary wall is demolished and I am satisfied that the agreed conditions also address the other concerns raised by objectors.
19. There being no reason why the consent orders should not be made, by consent, the Orders of the Court are: 1. The appeal is upheld. 2. Development Application D/2015/1239 for the adaptive re-use of the existing 2 storey building at the northern end of the site, demolition of the 2 existing warehouses at the southern end of the site and construction of a 3 storey residential flat building with mansard roof form at Wassall Lane containing 29 apartments and 1 commercial tenancy over 2 levels of basement parking at 2-16 and 18-24 Mitchell Road, Alexandria is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits A, B, C and 3, are returned.

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Sue Morris Commissioner of the Court 155927.16 Morris (C Annexure A) (432 KB, pdf)

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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: 18 August 2016