Haralambis v Marrickville Council

Applicant: LEGAL REPRESENTATIVES: Mr P McEwen SC instructed by Mr C Haralambis of Haralambis Lawyers Respondent: Mr A Galasso instructed by Mr G Christmas, Marrickville Council lawyer

JUDGMENT:

• 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11338 of 2005 Apostolos, Maria, Con and Aristidis Heralambis v Marrickville Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Marrickville Council (the council) of a development application to demolish the existing buildings and to erect a four-storey residential and commercial building over basement parking on lots 7 and 8, section 1, DP 1943, known as 276-278 Marrickville Road, Marrickville.

The site 2 The site is in the heart of the Marrickville shopping centre, which is a traditional early twentieth century strip centre. It is bounded by Marrickville Road to the north, Alex Trevallion Plaza to the east and Marrickville Lane to the south. To the west is 280 Marrickville Road, a two-storey commercial building. On the opposite side of the lane is a residential area centred on Silver Street. The building at the southwest corner of Marrickville Lane and Silver Street, 102 Silver Street, is in commercial use.

The proposal and its history 3 The applicant proposes to demolish the existing buildings on the site and to erect a four-storey building with shops at ground level and three residential floors above containing 15 dwellings. Vehicular entry is from Marrickville Lane. 4 The applicant lodged the development application in September 2005. Following notification the council received 15 individual objections and a petition signed by 75 people. On 6 February 2006 the council considered a planning report prepared by its planning staff recommending approval. The council did not accept the recommendation and, on 8 February 2006, refused the application. by which time the applicant had already lodged an appeal against deemed refusal.

Relevant planning controls 5 The Marrickville Local Environmental Plan 2001 (the LEP) zones the site General Business 3(A), a zone in which the proposal is permissible with consent. 6 State Environmental Planning Policy 65 - Design Quality of Residential Flat Development contains design principles that apply to residential flat buildings of three storeys and over. It is accompanied by the Residential Flat Design Code, which contains detailed guidelines. 7 Development Control Plan 28 - Urban Design Guidelines for Business Centres (DCP 28) applies to this site.

The issues 8 While the council's amended Statement of Issues contains ten issues, at the beginning of the hearing the council's advocate, Mr A Galasso, submitted that there were four salient issues in the case, ie: · whether the breach of the maximum Floor Space Ratio (FSR) was justified; · whether the breach of the maximum wall height of 7.5m at Marrickville Lane was justified; · whether the building's relationship to the Plaza was appropriate; and · whether the objectors' concerns were valid.

The objectors' concerns 9 The Court heard the evidence of six objectors. Ms J McGee, who lives at 116 Silver Street, said that the proposal's FSR exceeded the permissible 2:1 by 20% and that there was no justification for this. The fourth storey made the building too high. She did not like the architectural style and materials, which were too contemporary. She thought that the delicatessen building's façade should be retained. She considered that there was an adverse impact on residential development. 10 Ms J Hartman, who lives at 114 Silver Street, also objected to the excessive FSR. She asked: what is the use of rules and regulations if they are not enforced? The fourth storey made the building too high so that it overwhelmed the heritage items. She, too, wanted the delicatessen façade kept. She considered that the building's distribution of mass contravened the DCP. 11 Ms T Andricopoulos, who is the owner of 102 Silver Street, a building in commercial use across the lane from the subject site, thought that the underground parking should have two-way access. She was concerned about the shops not being serviced internally from the loading dock, the adequacy of internal garbage storage and the need to have the garbage collected from site. She objected to the overshadowing of the windows of her property, which might one day become residential. She thought that bollards should be erected along her property to stop trucks driving into it. 12 Ms T Warburton, who lives at 91 Silver Street, reiterated the concerns of the earlier objectors about FSR, height, number of storeys and impact on the plaza and on heritage items. Mr A Holland, who lives at 85 Silver Street, also endorsed previous comments. He was concerned about being overshadowed and overlooked from the proposed building. 13 Mr J Stamaeas, who lives in Bolton Street, said that he often sits in the plaza and was concerned about the proposal's impact on the amenity of the plaza. 14 The majority of the objector's concerns related to the building's design and bulk, which are also the council's issues. Concerns about Individual impact came from Ms Andricopoulos and Mr Holland. Three of Ms Andricopoulos's concerns are satisfied by conditions of consent, namely bollards in Marrickville Lane, the garbage being collected from within the site, and an internal connection from the loading dock to all retail tenancies. According to the Court-appointed traffic expert, Mr T Rogers, the fourth concern, namely to have two-way access to the basement parking, is not valid. As regards overshadowing of the north-facing windows of 102 Silver Street, there was no evidence that the use of the building is likely to return to residential. 15 No 85 Silver Street will receive some shadow late in the afternoon at mid-winter. In my opinion, this is not a significant impact. The house is more than 20m from the site, so the impact on privacy will be minor.

FSR 16 Clause 33(1) of the LEP establishes a maximum FSR of 2:1 for the site. According to the applicant the FSR of the proposal is 2.2:1. According to the council, it is 2.3:1. The Court-appointed expert on planning and urban design, Mr M Harrison, agreed with the lower assessment. I do not have to decide between the two assessments, since both exceed the permissible and the difference is not significant. 17 The applicant submitted an Objection under State Environmental Planning Policy 1 (SEPP 1) to the 2:1 development standard. The rationale for the objection is that the proposal satisfies all urban design requirements despite its higher FSR. The author of the council's planning report of 6 February 2006 found merit in the objection: The subject site is adjoined by two street frontages and a public plaza, and the applicant contends that such siting creates a physical separation from any adjacent properties that may experience adverse impacts from a development of greater FSR than that permitted under the LEP. As detailed in the following assessment, the proposed development does not result in significant impacts on the residential amenity enjoyed by any of the surrounding properties. As such it is considered that the subject site can accommodate a building of an increased FSR than what is otherwise permitted under the LEP. 18 Mr Harrison also agreed that the Objection was well founded. I have read the amended SEPP 1 objection dated 9 March issue E to vary the FSR to 2.2:1. I accept the arguments put forward in the objection. The site has an unusual circumstance compared to most other sites along Marrickville road in that it has frontage to two corners and fronts the only pedestrian plaza in the town centre which is appropriately at the centre of the Marrickville Road shopping strip. In these unique circumstances, it is reasonable to give special consideration to the appropriate controls for the subject site. The FSR control was derived from a concept of 2-3 storey stepping down to the lane. In the context of the site it is inappropriate to step down to the lane - it is more important to provide visual containment to the plaza. Also, it is reasonable to have some extra height on corner sites (this is acknowledged in DCP 28 Section A5). Consequently, the objectives behind the general FSR control need to be varied for the subject site. Accordingly it is appropriate to vary the FSR. I consider that the FSR standard should be varied in this case by 10-12%. 19 There was no expert view put to the Court opposing the SEPP 1 objection. The applicant pointed to a number of approvals along Marrickville Road where the council allowed development to exceed the FSR of 2:5:1. 20 I note that neither the council's planner nor Mr Harrison subjected the SEEP 1 objection to the standard tests established in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 at paragraph 26, ie. First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded? In relation to the fourth question, it seems to me that one must also look to see whether a development that complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case. 21 The crucial question is the fourth, namely whether compliance with the FSR of 2:1 is unreasonable or unnecessary. Clearly, there is no impediment to the proposal's compliance with the FSR standard since a building can always be made smaller. However, given that Mr Harrison's evidence was that the buildings should visually "contain" Alex Trevallion Plaza, a reduction of FSR would be achieved by removing part of the inside of the building or possibly part of the top level. None of this would change what one sees from the public domain. For that reason I accept that compliance with the FSR (or a fully complying building) is unnecessary and that, therefore, the objection is well founded.

Wall height at lane 22 DCP 28, Part A3 Control C5 states that buildings are to step down at the rear to a maximum external wall height of 7.5m to be compatible with the scale and character of adjacent residential areas and in keeping with the built form pattern of retail streets. Part A Control C1 states that buildings are to be massed towards the street frontage, stepping down to the rear. A special note to applicants, however, states that council may consider an application for a building that departs from the 7.5m rear height control, if the adjoining building context contains buildings of a greater height. 23 The proposal has a wall height of 9.6m to the lane. According to Mr Harrison, the 7.5m control is meant to apply to buildings that front a street and a lane and are not corner sites. In his opinion, the height at the rear should not be reduced to 7.5m because the building would then not visually "contain" the Plaza. I accept that this is a valid reason for varying the wall height at the lane. I note also that there is a building on the other side of the lane that is higher than 7.5m, or indeed 9.6m. Because No 102 is not in residential use, there is no question of additional impact on a residential area.

Relationship to Plaza 24 While it is not expressly stated in the council's Statement of issues, I understand from the council's submission that the proposed building is too high at the lane not only because it exceeds 7.5m, but also because the rear of the Post Office (on the opposite side of the Plaza) is single-storey. In the end, I cannot go beyond Mr Harrison's opinion that the proposal's relationship to the Plaza is appropriate and a lower building would not adequately contain the space of the Plaza. There was no opposing expert opinion. While different minds may differ on such a highly subjective matter, Mr Harrison's subjective opinion is one to which I have no reason to take exception.

Conclusions 25 The council's planning report and the Court-appointed expert on planning and urban design have found this proposal acceptable. There was no other expert opinion before the Court. The applicant accepted changes to the design to ensure that there would be no adverse impact on the property at 102 Silver Street. I am aware that several nearby residents object to the proposal on urban design grounds; however I must give greater weight to the opinion of the Court-appointed expert, who has found that the proposal was acceptable. For the above reasons the appeal is upheld.

2. Development application to demolish the existing buildings and to erect a four-storey residential and commercial building over basement parking on lots 7 and 8, section 1, DP 1943, known as 276-278 Marrickville Road, Marrickville is determined by the grant of consent subject to the conditions in Annexure A.

      Dr John Roseth
      Senior Commissioner

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