GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney

Land and Environment Court (NSW)|2015-12-15|Before: Danks Street P

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No D/2014/1841 for a five storey mixed use development consisting of 40 residential car parking spaces, ground level commercial tenancies and 43 residential apartments (the proposal) at 2-6 Danks Street, Waterloo (the site) by the Council of the City of Sydney (the Council).
The appeal was subject to mandatory conciliation on 22 June 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 28 August 2015, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 4 September 2015 for the applicant to rely on the amended proposal and on 8 September 2015 for the Council to file an amended statement of facts and contentions.

The site and its context

The site is on the north-eastern corner of the intersection of Danks Street and Young Street, Waterloo. The site is L shaped with an area of 1919sqm, with a 43.15m southern boundary to Danks Street and a 30.5m western boundary to Young Street. There is a 4.2m splay on the corner of Danks and Young Streets.
The site currently contains a part one and part two storey commercial building.
To the east of the site at 169-175 Phillip Street is a mixed use development known as 'Warehouse 5', comprising five buildings ranging in height from three to seven storeys, containing residential units. Further to the east is a mixed use development known as 'Casba', comprising three buildings ranging in height from four to six storeys, containing residential units.
On the opposite side of the street at 1 Danks Street is a four storey mixed use development with residential units on the upper levels. The units on the upper levels enjoy views of the city skyline over the site.

The proposal

The mixed use proposal consists of the following:

2 levels of basement parking, with a total capacity of 40 residential car parking spaces with basement access from Young Street;
Ground level retail orientating to Danks Street;
Three levels of residential apartments;
Partial fourth level of residential apartments, setback from the facades to Young and Danks Streets.

A Voluntary Planning Agreement (VPA) offer made by the applicant, lodged on 27 February 2015, being a public benefit offer of a financial contribution of $455,762.50 for the delivery of community infrastructure (off the site but within the Green Square area) in exchange for the additional FSR of 0.5:1 (959.5sqm at $475 per square metre of the additional FSR), pursuant to cl 6.14 of the LEP 2012, forms part of the application. The VPA is cited at condition 7 of the conditions of consent (exhibit 4).
The application was lodged 2 December 2014.

Planning Framework

The 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)(i). Consideration is to be given to the design quality of 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). Amendment No 3 of SEPP 65, including the 'Apartment Design Guide' (ADG) commenced on 17 July 2015. The RFDC applies to applications lodged prior to 19 June 2015 and not finally determined, pursuant to the savings provision at cl 31(2).
The site is zoned B2 Local Centre, under LEP 2012 and the proposal is permissible with consent. The objectives of the B2 zone are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To allow appropriate residential uses so as to support the vitality of local centres.
The maximum FSR for the site is 1.5:1 (Floor Space Ratio Map Sheet FSR_017 of LEP 2012). The objectives of the FSR development standard at sub-cl 4.4(1) of LEP 2012 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.
The maximum building height for the site is 15m (Height of Buildings Map HOB_017 LEP 2012). The objectives of the Height of Buildings development standard at sub-cl 4.4(1) 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.
At the time the application was lodged, the relevant Height of Buildings Map Sheet 17 was LEP 2012 (Amendment No. 12), pursuant to cl 1.8A of LEP 2012 (the standard instrument savings provision). The current Height of Buildings Map Sheet 17 of LEP 2012 (Amendment No. 19) has the same maximum building height for the site of 15m and both maps include a strip of 18m maximum building height for the full length of the block, fronting Phillip Street.
Clause 4.6 of LEP 2012, Exceptions to development standards, relevantly includes the following: (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
Clause 6.14 of LEP 2012, Community infrastructure floor space at Green Square, relevantly includes the following: (1) The objective of this clause is to allow greater densities where community infrastructure is also provided. (2) A building on land in an Area specified in paragraph (a), (b), (c), (d), (e) or (f) is eligible for an amount of additional floor space (community infrastructure floor space) equivalent to that which may be achieved by applying the floor space ratio specified in the relevant paragraph to the building, but only if the development of the land includes development for the purposes of recreation areas, recreation facilities (indoor), recreation facilities (outdoor), public roads, drainage or flood mitigation works: (b) Area 6 - 0.5:1
The site is within the Danks Street locality, at 2.5.3 of the Sydney Development Control Plan 2012 (DCP 2012).
DCP 2012 includes, at 4.2.1(1) Building height, that development must not exceed the maximum number of storeys as shown in the Building height in storeys map. The DCP 2012 Height in storeys map sheet 017 indicates a building height in storeys control for the site of 4 storeys.
DCP 2012 includes, at 4.2.3.8(1) that the area of common open space under common title is to be at least 25% of the total site area with a minimum dimension of 6m.

Public submissions

Three resident objectors provided evidence on site at the commencement of the conciliation conference on 22 June 2015 and the Court, in the company of the parties and the objectors, viewed the site from a number of apartments at 1 Danks Street. An agreed summary of the evidence provided on site was tendered (exhibit 8).
Two resident objectors, both from apartments within 1 Danks Street, provided evidence at the commencement of the hearing in Court in relation to the amended proposal.
The objections to the proposal can be summarised as:

The proposal is too high and will obstruct district and city views from some of the apartments within 1 Danks Street;
The proposal contributes nothing to the public domain;
The design is bulky, busy and not something the objectors want to look at.

Expert evidence

Expert planning evidence was provided by Mr Keith Ng on behalf of the Council and Mr Ian Glendinning on behalf of the applicant.

Total gross floor area (GFA) and calculation of FSR

The definition of GFA in the dictionary of LEP 2012 is as follows: 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.
The planning experts disagreed on the application of the definition of GFA in LEP 2012 to the proposal. According to Mr Ng, the FSR of the proposal is 2.13:1 and according to Mr Glendinning, it is 2.1:1 (exhibit 3, p iv). They disagreed whether or not the floor area of a corridor in the proposal, open at both ends, should be included in the GFA used for the calculation of FSR. The corridor, which is 12.3m x 1.5m and runs north-south, is repeated on the first, second and third floors and provides access to the units in the south-western corner of the proposal. At the southern end, the corridor has a 'wall' of fixed, open louvres and at the northern end it has no barrier and walking along this corridor one would continue onto the balcony that forms part of the communal horizontal circulation of the proposal and provides access to units on the northern side of the site. On the first floor, the corridor runs into the communal area and garden in the centre of the site. The eastern and western walls of the corridor are the external face of the walls of units or their courtyard. The corridor is required to provide access to units 6 and 7 on the first floor, 19 and 20 on the second floor and 31 and 32 on the third floor.
According to Mr Ng, it is normal practice for the Council staff to exclude 2m of such a corridor adjacent to the fixed, open louvres or a balustrade and the rest of the area of the corridor is included in the GFA calculation. There is no explanation for the basis of the exclusion of 2m depth of floor area adjacent to the fixed open louvres, other than it is normal practice by Council's staff. According to Mr Glendinning, the corridor is excluded from the GFA calculation as it is open at either end.
Northing turns on whether or not the corridors, the subject of the planners' disagreement, are included in the GFA or not, as the FSR development standard for the site is exceeded regardless of which interpretation I prefer, and the exceedance of the FSR development standard is dealt with in the following section of the judgment in relation to the cl 4.6 of LEP 2012 written request for an exceedance to the FSR development standard.
However, for the sake of completeness in dealing with the issues raised, it is my view that the area of the corridor, open at both ends, does not form part of the GFA. The definition of GFA in LEP 2012 requires the floor area of each level to be measured from the internal face of external walls, measured at a height of 1.4m above ground. The corridor is contained on either side by the external face of walls that form the external walls of the units on either side of the corridor (except for the courtyard of units 7, 20 and 32 on each floor, as the corridor is contained next to these units by the outer fence or wall that forms the edge of the private courtyard). The external face of the wall cannot be characterised as an internal face, because an external wall must provide the weatherproofing that maintains the internal wall or face as a dry wall, in other words, an external wall has a specific function that distinguishes it from an internal wall. In full brick construction, where the wall forms the façade of a building, the outer skin of brickwork is wet during inclement weather and the purpose of the cavity between the brickwork skins is to maintain the inner or internal wall as dry. The internal face of an external wall in the definition of GFA must refer to the interior surface of the wall that forms the façade or exterior of a dwelling, being the wall that weatherproofs the interior space, and cannot refer to the exterior surface of the outer wall. Therefore, the sum of the floor area of each floor of a building measured from the internal face of external walls requires the floor area that is included in the GFA calculation to be internal floor space. The corridor will be wet during inclement weather by rain blown along the gap, the walls containing the corridor function as external walls and so the corridor cannot be characterised as internal floor space.
It is my view that the corridor is not caught by the excluded area in the definition of GFA for 'terraces and balconies', because it functions as a horizontal circulation space providing access to two units and not as a terrace or balcony. There is no definition for 'terrace' or 'balcony' in the dictionary of LEP 2012. 'Terrace' and 'balcony' are defined by the on-line Macquarie Dictionary as: Terrace: an open (usually paved) area connected with a house and serving as an outdoor living area. Balcony: a balustraded or raised and railed platform projecting from the wall of a building.

Contravention of the FSR and height of buildings development standards in LEP 2012

In order for development consent to be granted for a development that contravenes a development standard in LEP 2012, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2012) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012) (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90).
The relevant objectives for the FSR development standard, at sub-cl 4.4(1) of LEP 2012, are to provide sufficient floor space for future needs, to regulate the density of development, control the generation of traffic and to ensure that new development reflects the desired character of the locality and minimises adverse impacts on the locality's amenity.
The applicant's written request for an exception to the FSR development standard of 2:1 (including the additional 0.5:1 under the VPA), for a proposal with a FSR of 2.1:1, justifies the exceedance on the following bases:

The proposal maintains the expected floor space anticipated for the Green Square area under the planning controls and the building scale is consistent with the surrounding area;
The additional floor space results in two additional apartments on the Terrace Level and this increase in density is not discernible and does not result in additional amenity impacts;
The proposed development will result in a four storey street wall with the uppermost floor being visually recessive.

For reasons set out in the following section of the judgment, unit 39 is to be deleted to provide an adequate area of common open space with reasonable amenity. Following the deletion of unit 39, the FSR will be reduced to 2.05:1. The Council seeks to have unit 40 deleted also in order to reduce the FSR below 2:1, however, apart from strict numerical compliance, there is no pressing reason to delete unit 40, as the deletion of unit 39 will provide an adequate area of common open space within the proposal and unit 40 results in no additional amenity impacts, nor does it cause a view impact to the apartments in 1 Danks Street, as unit 40 sits directly to the south of unit 41. I am satisfied that the amended proposal, following the deletion of most of the floor space of unit 39, is consistent with the objectives of the FSR development standard and the objectives for development within the zone and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify contravening the FSR development standard.
The relevant objectives for the height of buildings development standard, at sub-cl 4.3(1) of LEP 2012, are to ensure the height of development is appropriate to the condition of the site and its context, to promote the sharing of views, to ensure the amenity of the public domain by restricting taller buildings to only part of a site, and to ensure the built form contributes to the physical definition of the street network and public spaces.
The applicant's written request for an exceedance of the height of buildings development standard of 15m, for a proposal with a maximum height of 17.25m, justifies the exceedance on the following bases:

The proposed building height will be appropriate for the context of the site, as there are significantly higher buildings further to the east fronting Danks Street;
The proposal maintains the four storey street wall desired by the planning controls and the uppermost level is setback from the façade of the building below 4.5m;
The proposal maintains the low scale character envisaged for the Green Square locality;
The Terrace Level does not have any additional amenity impacts;
A fifth level is necessary to achieve the FSR for the site and maximise internal amenity.

The applicant's written request (exhibit G p2) states that the setback of the uppermost level is 4.5m and 6m from the street wall of the proposal. However, the architectural drawing (07 of exhibit N) has no dimension noted for the setbacks from Young and Danks Streets and scales at less than 4.5m and 6m respectively. The amended drawing set are to be drawn accurately with the 4.5m and 6m setbacks and a dimension for both setbacks are to be noted on the architectural drawing.
According to Mr Ng, each of the developments at 169-175 Phillip Street, 18 Danks Street and 17-19 Danks Street have elements of the development that are more than four storeys or in excess of 15m in height. Generally, the higher built form of these developments is located away from the street and the development was approved under a previous planning scheme.
I am satisfied that the height of the proposal is appropriate to the condition of the site and its context, as the development in Danks Street is up to seven storeys in height and the built form of the four storey street wall of the proposal contributes to the physical definition of the street network. The fifth storey of the proposal is located to the north and west of the site, with most of the Danks Street elevation, following the deletion of most of the floor space of unit 39, four storeys in height with unit 40 on the fifth level setback 6m from the Danks Street façade of the four storey component of the development. I am satisfied that the amended proposal is consistent with the objectives of the height of buildings development standard and the objectives for development within the zone and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances. I am satisfied that there are sufficient environmental planning grounds to justify contravening the height of buildings development standard. Extract from Height of Building (HOB) map Sheet 17 LEP 2012
Development that achieves the 18m maximum building height in the strip fronting Phillip Street, indicated on the above extract of the HOB map as 'P', will ultimately obstruct the district views to the north to north-west from the apartments on the upper levels of 1 Danks Street, as 1 Danks Street is four storeys high.
Furthermore, the Council does not oppose the fifth storey on the site, units 41, 42, and 43, which are along the northern side of the site. Deleting unit 40, to the south of unit 41, would not improve the view loss from the apartments on the upper levels of 1 Danks Street.

Building separation

The Council contends that the proposal results in sub-standard residential accommodation as the building separation between the northern and southern wings of apartments is insufficient to provide adequate visual privacy.
The planning experts agreed that the proposal does not comply with the separation distances in either the RFDC or the ADG and that compliance could be achieved by deleting the balconies on the southern side of the northern wing of the second, third and fourth floors.
The separation between the two wings is partly a function of the site dimensions in combination with the proposed layout of units on each level. I am satisfied that the layout provides adequate privacy within the proposal for the following reasons:

The main living areas of both the southern and northern wings are orientated to the north and open onto a northern balcony, so that residents will predominately spend time on their northern balcony;
The separation between the two wings has a lift and stair connected by a walkway, which positions a structure in the centre of the opening obstructing some views between the two wings;
The balconies that could be deleted to achieve the 12m separation are 1150mm deep and accessed from a bedroom or dining area on the southern side of the northern wing. They are not wide enough for any substantial furniture. The balustrade and balcony will provide some level of privacy to the rooms on the southern side of the northern wing when compared to removing the balustrade and balcony;
The proposal is located in an urban, vibrant locality where there is an expectation for a higher density of development and the proposal is consistent with this character and provides an adequate internal separation and sense of privacy to the future residents.

Common open space

The Council contends that the proposal provides inadequate communal open space and the proposed common open space on the first floor will be overshadowed by the development.
Mr Glendinning agreed with Mr Ng that the deletion of unit 39 on the fifth level will achieve the amount of communal open space required by the planning controls and will achieve good amenity for that open space (exhibit 3 pviii).
I accept the planning experts' agreement that the deletion of unit 39, retaining the floor space to the west of grid B (07, exhibit N) will provide adequate common open space for the proposal with good amenity. Unit 40 is to be reconfigured, within the existing envelope and including the retained portion of unit 39, to create a four bedroom unit. The 4.5m setback to the Young Street façade and 6m setback to the Danks Street façade is to be shown on the architectural drawing. The reconfigured common open space and landscaping is to be shown on the architectural drawing.

Internal sliding partitions to sleeping areas in the studio apartments

Condition 1(b) of the conditions of consent (exhibit 4) requiring the internal sliding partitions separating the sleeping area within the main living area of the studios in units 7, 8, 20, 21, 32 and 33 is to be deleted. The sliding partitions simply delineate a separate space and do not create a bedroom. They provide for some privacy when required and it is acceptable to retain them as part of the proposal.

Conclusion

I am satisfied that the amended proposal, following the deletion of most of unit 39, is consistent with the objectives of the FSR and height of buildings development standards and the objectives for development within the zone and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances. I am satisfied that there are sufficient environmental planning grounds to justify contravening the FSR development standard.
I am satisfied that the layout provides adequate privacy within the proposal and that the amendment proposed in the directions will result in a proposal with adequate communal open space with good amenity.
I do not accept that the submission by the applicant that the conditions of consent (listed at paragraph 5(b) of this judgment) should be amended. The Environmental Planning and Assessment Regulation 2000 at cl 161 identifies when a private certifier can provide the requisite approval in lieu of the Council.

Directions

Directions were handed down on 25 November 2015, as follows: For the reasons set out in the judgment, I am satisfied the proposal can be granted consent, following the deletion of unit 39, to the match the eastern extent of unit 41 (grid B, 07 exhibit N). Unit 40 is to be reconfigured to a 4 bedroom unit, within the existing envelope, including the retained portion of unit 39. The common open space area is to be increased and its layout and landscaping indicated on the architectural drawings. Existing pedestrian access from the vertical circulation between units 40 and 41 is to be maintained to the increased area of the common open space. The dimension of 4.5m is to be shown on the drawing as the setback of units 40 and 41 from the Young Street façade and 6m from the Danks Street façade. The amended architectural drawing set is to be given a new revision number/letter. The amended plans are to be filed and served by a date to be nominated by the applicant. The applicant is to notify the Court of the date the amended plans will be filed. The applicant is to file a pdf version of the amended plans. The respondent is to amend the conditions of consent, to update Condition 1(a) with the plan numbers and revision numbers/letters provided by the applicant and to delete condition 1(b). The amended conditions are to be filed with the Court electronically a week after the amended plans are filed. Liberty to restore on 2 days' notice. Orders will be made in chambers.
The applicant filed the amended architectural drawings in accordance with the Court's directions on 2 December, 2015 and the respondent filed the amended conditions of consent on 11 December 2015. Accordingly, I make the following orders:

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. D/2014/1841 for a five storey mixed use development consisting of 40 residential car parking spaces, ground level commercial tenancies and 42 residential apartments at 2-6 Danks Street, Waterloo is approved, subject to the conditions of consent at Annexure 'A'. 3. The exhibits, other than exhibit E, are returned. ____________ Susan O'Neill Commissioner of the Court 10319 of 2015 O'Neill (C) (409 KB, pdf) 10319 of 2015 O'Neill (plans Basement) (345 KB, pdf)

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: 15 December 2015

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