Findings
61I accept that LEP 2012 is a mandatory relevant consideration (Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 at pars 29-30) and I must have regard to the maximum 9m height development standard at cl 4.3(2) of LEP 2012 and its objectives.
62The difference between the height control that applied under DCP 1997 (9m to the underside of the ceiling) and the maximum height development standard in LEP 2012 (9m), is the depth of the roof structure, which is 210mm (exhibit D, section D-D, DA302 Rev G). The definition of height in DCP 1997 (quoted by Mr Grech in exhibit 6, p 6) is, 'the vertical distance expressed in metres between a point on the ceiling of the topmost habitable floor and the natural ground level immediately below that point'. The topmost habitable floor of the proposal is the Second Floor. The raised section of roof over the lift shaft and western wall of the lift shaft is 9.73m above natural ground level (RL34.63 on the site survey, exhibit D, in the approximate location of the lift) and a point on the ceiling in the lift shaft is 9.52m high. The DCP 1997 definition of height does not require the ceiling where the height is determined to be within the habitable floor area, it only requires a point on the ceiling of the topmost habitable floor. The underside of the slab in the lift shaft is a point on the ceiling of the topmost habitable floor. The area to the north of the lift shaft, where the western wall is raised to RL44.36, has no roof. The height of the lift shaft therefore exceeds both the maximum height control in DCP 1997 and the maximum height development standard in LEP 2012. Mr Grech conceded that the northern end of the skillion roof, at RL44.74 exceeds the maximum height control in DCP 1997, noting that if a flat ceiling was added at 9m to the raked underside of the roof slab, the proposal would comply with the maximum height control in DCP 1997 (exhibit 6, p 7).
63Even if I accepted the applicant's submission that DCP 1997 is of relevance and I gave the DCP 1997 maximum height control determinative weight and accepted that the skillion roof would comply with the height control (had the proposal been designed with a flat ceiling); I would still have to be satisfied that the raised section of roof and western wall of the lift shaft, which is 9.73m high, and the northern end of the skillion roof, which is 10.11m high, are acceptable in terms of any amenity impacts these elements have on adjoining development and in making that assessment, I would have to give some weight to the maximum height development standard and its objectives in LEP 2012 (as guided by Blackmore Design Group Pty Ltd v North Sydney Council 118 LGERA 290 par 30). In my view, the matter turns on a merit assessment of the impact of these elements on the adjoining development and not on the minor difference between the maximum height control in DCP 1997 and the maximum height development standard in LEP 2012. Therefore, I see no need to make a finding of the relevance or otherwise of the repealed DCP 1997.
64The difference between the parties in terms of the height of the proposal is focused on two relatively discrete areas of the proposal, the raised section of roof and western wall of the lift shaft, at RL44.36 (9.73m high), and the extension of the skillion roof over the northern terrace, to a maximum height of RL44.74 (10.11m high). The Council contends that the raised section of roof and western wall of the lift shaft have an unacceptable impact on the outlook from apartments 5 and 6 at 110-112 Redfern Street and the extension of the skillion roof over the northern terrace has an unacceptable impact on 104 Redfern Street, due to the visual dominance of the proposal when viewed from the courtyard.
65I accept Mr Nash's evidence that the neighbouring development at 110-112 Redfern Street effectively borrows its amenity from the undeveloped site. While I understand the concerns of the resident objectors regarding preserving their outlook from their kitchen windows and light to their bedrooms and kitchens, the orientation of eight large apartments from side boundary to side boundary and the position of the eastern façade 1.2m from the eastern boundary means that the amenity enjoyed by the residents on the eastern side of 110-112 Redfern Street, particularly on the first and second floors, is extremely vulnerable to the development of the adjoining property. Therefore, any amenity impacts on the apartments at 110-112 Redfern Street must be balanced against the reasonable development of the site. It would impose an unreasonable constraint on the development potential of the site, in my view, to expect the proposal to maintain the existing outlook, through the louvres, from the kitchens on the second floor at 110-112 Redfern Street.
66I accept the planning experts agreement that the raised section of roof and western wall of the lift shaft has a negative impact on the amenity of the occupants of apartments 5 and 6 of 110-112 Redfern Street. I accept and adopt Mr Nash's evidence that to lower the raised section of roof and western wall of the lift shaft to a maximum height of RL43.63, which is 9m above natural ground level, would eliminate the unreasonable amenity impacts on apartments 5 and 6 at 110-112 Redfern Street, because this would maintain a component of sky in the view above the louvres from a standing position in the kitchens of apartments 5 and 6. I understand from Mr Hanson's evidence that relocating the lift overrun to the basement level would reduce the height of the lift shaft by only 150mm and that lowering the roof over the lift shaft to RL43.63 would require the lift to terminate at the First Floor. Lowering the lift shaft by 150mm would not sufficiently ameliorate the impact of the proposal on the outlook from the kitchens of apartments 5 and 6 of 110-112 Redfern Street. Therefore condition (2)(i) in the Council's version of the conditions is to be deleted and the architectural drawings are to be revised to lower the roof and western wall of the lift shaft to a maximum height of RL43.63.
67If the raised section of roof and western wall of the lift shaft is lowered to RL43.63, the top of the wall on the western side of the pool will be 1.24m above the pool (the pool is at RL42.39 and not the level shown on the architectural drawings, as submitted by Mr Perkins). It would be possible for someone standing on the southern end of the coping around the pool to look into the eastern windows of apartments 6, 7 and possibly 8 of 110-112 Redfern Street. A translucent screen over the western wall of the pool would raise the height of the wall and obstruct the component of sky in the view above the louvres from apartments 6 and 7, which is not, in my view, a satisfactory solution. For this reason, the swimming pool and stairs to the pool are to be deleted. The wall on the western side of the Second Floor terrace, north of the lift shaft, is to be a maximum height of RL42.99, 1.8m above FFL of the roof terrace, as described in condition (2)(o) of the Council's version of conditions.
68I accept Mr Nash's evidence that the northern extension of the skillion roof over the northern terrace should be deleted, as this portion of the roof exacerbates the visual dominance of the proposal when viewed from 104 Redfern Street. The three storeys of the proposal extend further to the north than the rear wing of the two storey terrace house at 104 Redfern Street and the deletion of the extension of the skillion roof beyond the northern facade will ensure a more appropriate height transition between the proposal and the adjoining terrace house at 104 Redfern Street. In my opinion, it is reasonable to permit a maximum eave depth of 800mm beyond the northern facade and a horizontal roof or shade structure over the terrace for a maximum depth of 2.965m to match the depth of the paved terrace area, with a maximum height to the underside of the horizontal roof or shading structure above the paved terrace of 2.4m. A vertical shading device, such as louvres, can be added externally to shade the windows above the horizontal flat roof or shading structure, if desired.
69The Council's version of conditions (2)(p) and (q) are to be deleted, as Mr Nash's evidence was that it was the overhang of the skillion roof beyond the northern elevation that caused the impact on 104 Redfern Street and the deletion of the extension of the skillion roof would adequately ameliorate the visual dominance of the proposal on 104 Redfern Street, without resorting to redesigning the roof to be flat.
70I accept Mr Nash's evidence that the amenity impacts of the proposal on 104 Redfern Street would be ameliorated by the revisions described by condition (2)(f) of the Council's version of conditions, requiring the east facing windows on the First Floor to include screening to a height of 1.4m above the FFL. I also accept the applicant's modification of this condition to include the option of translucent glass to 1.4m above FFL, as translucent glass would also achieve the desired outcome of preventing overlooking.
71I accept Mr Nash's evidence that the visual dominance of the proposal and the amenity impact of the proposal on 104 Redfern Street would be ameliorated by the revision described in condition (2)(k) of the Council's version of conditions, requiring the Second Floor planter box on the eastern side of the roof terrace to be setback to the west, to align with the eastern facade and the provision of an obscure toughened glass privacy screen over. A roof is to be added over the 960mm portion of the First Floor eastern façade that steps further to the east than the rest of the eastern façade and the roof is to be no higher than the FFL of the Second Floor. In my view, the eastern wall along the roof terrace should be a minimum of 1.4m high, to the east of the planter and need not be translucent glass, instead it can be designed in any material, at the discretion of the architect, as long as it obstructs views from the roof terrace towards 104 Redfern Street.
72I accept Mr Nash's evidence that the 1.2m high balustrade on the northern side of the terrace is acceptable and consequently, condition (2)(g) of the Council's version of conditions, requiring a screening device on the northern boundary, is to be deleted.
73Due to the proximity of the western elevation of the proposal on the Second Floor and the eastern elevation of 110-112 Redfern Street, it is reasonable, in my view, to impose Council's version of condition (2)(h) requiring the western windows of the southernmost lounge area to be fixed and translucent and (l), requiring the deletion of the window adjacent to the lift shaft (and replaced by a skylight if desired), in order to avoid overlooking and light spill.
74I am satisfied that the proposed floor to ceiling heights do not unreasonably compromise the internal amenity of the proposal as the commercial tenancies are orientated to either the front, southern elevation or the rear, northern elevation and all have access to natural light.
75I accept the evidence of the Mr Hanson that the thickness of the edge beams of the floor slabs are 400mm and the proposal includes locating services on the underside of the slab, within the 400mm depth between the underside of the ceiling and the floor level over. Consequently, condition (2)(j) of the Council's version of conditions is to be deleted.
76The Council's version of condition (2)(m) requiring the open walkway to be enclosed to reduce the potential for noise impacts is to be deleted, as the walkway, on the Ground Floor, is two levels below the top of the masonry wall on the boundary of 110-112 Redfern Street, which provides sufficient separation from the adjoining development and the design of the entry with the entry gate setback from the street boundary with an open area over the gate, further modulates the streetfront elevation.
77The proposal includes 6 bicycle parking spaces in the basement and 5 at the rear of the proposal on the Ground Floor. The Council's version of condition (2)(a) requires the proposal to provide a minimum of 11 bicycle parking spaces in the basement. I am satisfied that the total of 11 bicycle parking spaces proposed by the applicant and shown on the architectural drawings satisfies Council's requirement for 11 bicycles and consequently, condition (2)(a) of the Council's version of conditions can be deleted.
78The applicant disputes the Council's version of condition (8), as the Council requires a maximum of 5 parking spaces and the applicant seeks 6 parking spaces. The basement plan shows 6 car parking spaces (exhibit D, DA100 Rev G). I am satisfied that the 6 parking spaces are acceptable and condition (8) is to be revised from 5 to 6 car parking spaces.
79The applicant disputes the Council's version of condition (20), as the Council requires graffiti to be removed within 48 hours of its application and the applicant seeks 72 hours. I am satisfied that 72 hours for the removal of graffiti is reasonable and achieves Council's requirement that graffiti be removed soon after its application. Condition (20) is to be revised from 48 hours to 72 hours.
80The applicant disputes the Council's version of condition (22)(b), requiring garbage and recycling to placed on the street within half an hour of collection and removed within half an hour following collection. The applicant seeks 12 hours either side of collection for placement and removal of bins. The collection day for the site is Monday and no time is specified for collection (http://www.cityofsydney.nsw.gov.au/live/waste-and-recycling/collection-days-and-bins/find-your-collection-day). The City of Sydney website states the following in relation to placement of bins prior to collection (http://www.cityofsydney.nsw.gov.au/live/waste-and-recycling/collection-days-and-bins):
'If you live in a house, put your bins out the night before collection day, near the kerb and in a spot where they won't block pedestrian, bicycle or vehicular access'
'All your bins must be stored ON your property between collections, not on the footpath or street'
'If you are a business, you will need to arrange a private waste and recycling collection. Our services are only for residents living in the City of Sydney council area.'
81As there is only one dwelling in the proposal, it follows that it is equivalent to 'a house' in terms of Council's garbage policy. The Council's version of condition (22)(b) is therefore contrary to Council's policy for domestic garbage, to 'put your bins out the night before collection day' and there is no need to impose a condition requiring the bins to be brought in within half an hour as this is also addressed by Council's policy that bins must be stored on the property between collections. In order to permit the resident to place the bins on the street the night before collection, the 'half an hour' in condition (22)(b) is to be replaced by 12 hours for both placement and removal of bins and 'Domestic garbage and recycling' can replace 'Garbage and recycling'. A further condition (c) may be added by Council to address the requirement for any business occupying the proposal to arrange for private waste and recycling collection, in accordance with Council's policy.
82The applicant disputes the Council's version of condition (46), requiring a detailed plan of the green roof to be submitted to and approved by Council prior to the issue of a construction certificate. The requirements in condition (46) are not fully addressed by the following condition, (47) Landscaping of the Site and the landscaping of the roof terrace is an integral part of the proposal, with the potential to cause amenity impacts on adjoining development. Therefore condition (46) is to be retained in the conditions of consent.
83The applicant disputes the Council's version of condition (75)(a) specifying the Tree Protection Zone (TPZ) for trees 2, 3 and 4 and seeks to modify the condition by adding that the TPZ for trees 2, 3 and 4 are to be modified to accord with the Arboricultural Impact Assessment prepared by Bluegum Tree Care and submitted as part of the development application. The reference to the Arboricultural Impact Assessment modifications of the TPZ for trees 2, 3 and 4 in the condition is acceptable, as the report has considered the issue in detail and it has been prepared by a suitably qualified consultant.