Geeves, Kent v Marrickville Council

Land and Environment Court (NSW)|2013-07-03|Before: Mr J

Judgment 1COMMISSIONER: This appeal comes before the Court for consent orders in relation to Development Application No. 201200276 to demolish the two single storey dwelling houses and erect three 2 storey dwellings with roof terraces, over basement garages (the proposal), at 9-11 Barwon Park Road, St Peters (the site). 2Prior to the hearing, the parties agreed to enter into consent orders, based on amendments made to the original development application. The amended proposal was submitted to Council for a s.82A of the Environmental Planning and Assessment Act (EPA Act) review of Council's determination, however the amended proposal was refused consent because Council did not have before it a written request from the Applicant seeking to justify the contravention of the floor space ratio development standard, pursuant to cl 4.6 of the Marrickville Local Environment Plan 2011 (LEP 2011). 3The principle changes made to the original proposal to create the amended proposal, now before the Court, were:

Modification of the southern end of the building to increase the nil setback along the southern boundary to 1.78m at the western corner adjacent to Crown Street and nil at the eastern corner of the proposal;
Modification of the floor levels to reduce the overall height of the proposal at the southern end by 100mm;
Modification of the basements to delete the second car space for the southern and middle dwellings, so that each dwelling has one car space only and storage areas; and

Planning Framework 6The site is within the R1 Zone - General Residential, pursuant to the provisions of LEP 2011. The objectives of the R1 Zone are as follows: · To provide for the housing needs of the community. · To provide for a variety of housing types and densities. · To enable other land uses that provide facilities or services to meet the day to day needs of residents. · To provide for office premises and retail premises in existing buildings designed and constructed for commercial purposes. 7The height of a building on this site is not to exceed 11m, pursuant to cl 4.3(2) LEP 2011. 8The maximum floor space ratio (FSR) on this site is not to exceed 0.85:1, pursuant to cl 4.4(2) LEP 2011. The definition of the FSR of buildings on a site, at cl 4.5(2) of LEP 2011, is the ratio of the gross floor area of all buildings within the site to the site area. 9LEP 2011 includes the following relevant definitions: basement means the space of a building where the floor level of that space is predominantly below ground level (existing) and where the floor level of the storey immediately above is less than 1 metre above ground level (existing). gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above. 10The building footprint for the site is defined by setbacks from the boundaries. Marrickville Development Control Plan 2011 (DCP 2011) Part 4 - Residential Development, 4.2 Multi-dwelling housing and Residential Flat Buildings, includes the following objectives and controls for setbacks: Objectives O20 To integrate new development with the established setback character of the street. O21 To maintain a reasonable level of amenity for neighbours with adequate access to sunlight and fresh air. O22 To ensure adequate separation between buildings for visual and acoustic privacy. Controls C11 Multi dwelling housing i. Minimum front setback: a. 6m from the front boundary b. On corner lots the secondary building line may, at the discretion of Council, be reduced to 4.5m; and c. For buildings above two storeys, each application shall be considered on merit. NB Council may consider a variation to the above setback requirements where it is considered that a reduced setback will result in an improved streetscape and visual relationship with adjoining development. ii. Minimum side setback: a. Must be 4m where there is no driveway along the side boundary; and b. Must be 7m where a driveway is proposed along the side boundary. NB Council may agree to a minor variation to the above setbacks in order to create visual interest, provided that a corresponding section of the wall has its setback increased by an amount which is equal to the reduction in setback elsewhere. 11DCP 2011 states, at 4.2.4.3, that the minimum setbacks specified in the DCP may be varied to suit an individual site's context, especially in some of the highly built up areas of Marrickville LGA where Council places particular emphasis in continuing the established building alignment.

Site coverage (setbacks) 12The parties agree that the unique triangular configuration of the site makes strict compliance with the setback controls in DCP 2011 impossible to comply with, as compliance would result in a building footprint of 44m2 with a height of 11m, which is not viable for a multi dwelling residential development. Mr Nino (planning expert for the applicant) says that the physical site constraints require the development to encroach on the building setback requirements and that the existing dwelling at 11 Barwon Park Road has a nil boundary setback to the southern boundary. 13The parties agree that the proposal complies with the objectives for site setbacks. Mr Nino says that the majority of the building bulk has been confined to the western side of the site at the southern end, in order to ensure that solar access to the private open space of 13 Barwon Park Road is maximised. 14The parties agree that the nil setback of the proposal to Crown Street (western elevation) is appropriate and reflects the nil setback to Crown Street of the existing residential development along the street, including residential flat buildings and terrace style dwellings on the opposite side of Crown Street. 15The proposal has been amended to increase the setback to the southern boundary, with a 1.67m setback from the southern boundary on the Crown Street side, narrowing to a nil setback to southern boundary at the south-eastern corner of the proposal at the basement level only. There is an approximate setback of 350mm to the southern setback at the south-eastern corner at levels 1 and 2, as levels 1 and 2 step back from the eastern extent of the proposal at the basement level. 16I agree with Mr Nino's conclusion that the solar access to the outdoor living area of 13 Barwon Park Road is maximised during winter mornings by locating the proposal on the western side of the site at the southern end. I accept the submissions of the parties that the proposal meets the objectives of the setback controls and that the setbacks are an appropriate response to the constraints presented by the unusual configuration of this site and the context of the proposal.

Height 17The northern side of the roof terrace pergola roof scales at 9700mm high above ground level at the southern boundary (Drawing A05 South Elevation). The entire development is below the 11m height limit for this site. 18The roof ridge of the dwelling on the adjoining allotment to the south is RL22.80. The top of the masonry wall along the southern elevation of the proposal is RL20.10. The pergola over the roof terrace, which is setback from the face of the southern elevation by 2100mm, is RL22.60. 19I accept that Council has determined that this site should provide a transition in height between the 20m (Q) and 17m (P) height limits to the north along Barwon Park Road and 14m (N) further to the south of Barwon Park Road (Exhibit 4 - Height of Buildings Map). The adjoining residential allotments to the south have a height limit of 9.5m (J). 20The proposal sits wholly within and below the maximum height limit for the site of 11m and the impact of the proposal on the adjoining dwelling is mitigated by locating the proposal on the western side of the site; by providing some setback to the southern elevation and by stepping the roof terrace of the southern dwelling to the north. For these reasons, I am satisfied that the proposal is an appropriate height and that the impacts of the height of the proposal on the adjoining dwelling to the south have been sufficiently mitigated.

FSR 21According to Mr Nino, the FSR of the proposal, not including the basement levels is 0.82:1 and this is not disputed by the Council. Had the basement level been excluded from the FSR calculation, the proposal would comply with the permissible FSR for the site. 22The definition of the FSR of the building on the site is the ratio of the gross floor area of all buildings within the site, to the site area. The definition of gross floor area excludes any basement used for storage, vehicular access and car parking. However the definition of basement requires the basement level to be less than 1m above ground level. The basement level of the southern dwelling of the proposal ranges between 800mm and 1600mm above ground level (Section 1 Drawing A05), which means that a strict application of the definitions would require a portion of the basement of the southern and middle dwellings and all of the basement area of the northern dwelling to be included in the FSR calculation, despite their use for car parking and storage only. 23Mr Nino estimates that when the areas of the basement level that are more than 1m above ground level are included in the FSR calculation, the FSR for the proposal will be approximately 0.9:1. The Council did not dispute this estimate, however the Council's estimate is 1.05:1. Consequently, the Applicant has provided a written request seeking to justify the contravention of the floor space ratio development standard, pursuant to cl 4.6 of LEP 2011 (Exhibit A, tab 7) and with reference to the judgment of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe). Mr Nino argues that the provision of an appropriate degree of flexibility in applying the FSR development standard is warranted for the following reasons:

That the proposal provides an architecturally designed terrace style development and the residential floor space of the development does comply with the FSR control;
That the bulk and scale of the proposal is considered acceptable and this is supported by the compliance with the maximum building height control;
That the streetscape character and articulation of the proposal will provide a suitable streetscape presentation that will contribute to the ongoing renewal of the locality;
That should the basement level be deleted so that the proposal does comply with the FSR control, it would increase the demand for on-street parking and result in potential cumulative parking impacts in the locality; and
That the proposal is consistent with the desired future character of the locality for medium to high density residential development. 24The most commonly invoked way to establish that compliance with the development standard is unreasonable or unnecessary is because the objectives of the development standard are achieved, notwithstanding non-compliance with the standard, as found in Wehbe, set out at par 42. The Court must be satisfied of three matters before it can uphold a request seeking to justify the contravention of a development standard and then consider the merits of the application. The matters are:
The Court must be satisfied that the objection is well founded;
The Court must be of the opinion that granting consent to the development application is consistent with the aims and objectives of the [State Environmental Planning Policy No 1 - Development Standards (SEPP 1)] policy, as set out in clause 3 of SEPP 1. These are to provide 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 or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. The objects in s 5 (a) (i) and (ii) are 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 co-ordination of the orderly and economic use and development of land,
The Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the objection. These are: (a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument. 25Mr Nino's evidence is that the strict application of the FSR development standard is unreasonable because the departure from the numerical development standard relates to the area of the basement garages that are more than 1m above existing ground level. Had the basement garages been located at a lower level, such that the floor level of level 1 was less than 1m above ground level, the entire floor area of the basement would be excluded from the FSR calculation. In his opinion, the raising of the proposal such that the floor level of level 1 is generally more than 1m above the ground level is acceptable because the proposal is below the maximum height development standard for the site of 11m and the proposal achieves the objectives of the FSR development standard. 26The relevant objectives for the FSR development standard, at cl 4.4 of LEP 2011, are: (a) to establish the maximum floor space ratio, (b) to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas, (c) to minimise adverse environmental impacts on adjoining properties and the public domain. 27I am satisfied that the provision of an appropriate degree of flexibility in applying the FSR development standard is warranted because the raising of the basement levels to provide fairly level access from Barwon Park Road to each garage has not resulted in the proposal exceeding the height development standard for this site. I accept Mr Nino's evidence that the proposal meets the objectives of the FSR development standard.

Local character 28The local area is characterised by a mix of low, medium and high density residential development, including, on the opposite side of Crown Street, a four storey contemporary residential flat building; a two storey brick warehouse, with parapet, converted to a residential flat building; as well as two storey Victorian and contemporary rows of terraces in the vicinity and to the south, two semi-detached two storey dwellings and an industrial warehouse building. 29I accept the agreement of the parties that the proposal is an appropriate addition to the locality and that it is consistent with the desired future character of the area and meets the objectives of the R1 Zone.

Conclusion 30In considering the amended plans and documents and agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the objector, I am satisfied that it is 'lawful and appropriate' to grant the consent, having regard to the whole of the circumstances, including the proposed conditions of consent.

Orders 31The orders of the Court are: 1.The applicant is granted leave to rely upon the following amended plans prepared by Cracknell & Lonergan Architects dated 14 February 2013: A01 - Site Analysis Plan A02 - Basement and Level 1 Plan A03 - Level 2 and Roof Terrace Plan A04 - Roof Plan and Site Plan A05 - Sections and Elevations A06 - Elevations East and West A11 - Finishes 2.The applicant is granted leave to rely upon the following amended plans prepared by United Engineers dated 5 February 2013: Sheet 1 - Site and Roof Drainage Plan Sheet 2 - Basement Drainage Plan 3. By consent, the appeal is upheld. 4.Development consent is granted to development application No. 201200276 lodged by the Applicant with the Respondent on 17 July 2012 for the demolition of existing dwellings and the construction of 3 attached dwellings with associated basement parking at 9-11 Barwon Park Road, St Peters, subject to the conditions in Annexure A. 5. No order as to costs. 6. The exhibits, other than exhibit 2, are returned.

Susan O'Neill 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. Decision last updated: 16 July 2013

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