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[2014] NSWLEC 1234
Land and Environment Court (NSW)
2014-08-19
Mr P
Original judgment source is linked above.
Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of development application D/2013/1824 for the demolition of an existing building, excavation of a basement car park and construction of an apartment building at 10-20 McEvoy Street Waterloo (the site). 2Hunter Young Pty Ltd (Hunter Young) lodged the development application D/2013/1894 on 26 November 2013, and the Class 1 appeal was lodged on 30 January 2014. The development application was amended following a conciliation conference conducted under s 34 of the Land and Environment Court Act 1979, and the application has been further amended during the course of the hearing of the appeal.
The site and its locality 3The site is on the southern side of McEvoy Street, with a 90.38m frontage to McEvoy Street, a 35.19m frontage to Hunter Street, and a 43.61m frontage to Young Street. The site currently contains a two storey warehouse and office complex with access from both Young Street to the east and Hunter Street to the west. The current setbacks are approximately 16m from McEvoy Street, and 3m on the eastern and western boundaries. The existing building is constructed to the southern boundary. There are a number of mature trees along the McEvoy Street frontage. 4The area comprises a mixture of commercial, light industrial and residential uses. To the north on the opposite side of McEvoy Street is a motor repair centre in an existing two storey building. To the north east on the corner of Young Street is a heritage item, the former Sydney Water Pumping Station and Valve House, on a site identified in the Green Square Urban Strategy as "Required open space - preferred location". To the north west is Kensington Mews, a residential development set back approximately 17m from McEvoy Street. To the east of the site on the opposite side of Young Street is a two storey warehouse complex. Further to the east on Bourke Street is an 11 storey development known as the Becton building. Adjoining the site to the south is International Screen Academy, a film and acting school in a two storey warehouse building, which is built to the southern boundary of the subject site. Further south of the site are a series of warehouse and high technology buildings. On the southern side of Powell Street to the south is a large residential development known as the Mondrian development. To the west of the site on the opposite side of Hunter Street is a mixed use development known as Sonoma. That development has two components, a four storey building to Hunter Street and a six storey building to Elizabeth Street.
The proposed development 5The proposed development is for 82 units in three buildings of up to five levels, with 61 car parking spaces on two basement levels. Driveway access is from Hunter Street at the southern boundary of the site. 6One building (the northern building) extends along the northern side of the site on McEvoy Street, with a 4.3m setback at ground level and up to level 3. There is an additional setback of 4m on level 4, in which there are balconies for the four units on that level. The northern wall of the northern building is 87m long, with block A (on the western side of the site, on the Hunter Street frontage) being 39m to an indent 5m wide and 4m deep to the glass line of the building, and then block B (on the eastern side of the site, on Young Street) being 43m. There is an entry at the "indent" point, with a ramp and stairs, and letterboxes. 7There are two buildings proposed for the southern part of the site, Block A and Block B (the southern buildings). Block A is located on the western side of the site with frontage to Hunter Street and Block B is on the eastern side facing Young Street. A setback of 5m is proposed for both Young and Hunter Streets. Four units are proposed for level 4 of Block A of the southern buildings. The building is four stories on Young Street, and as it abuts the southern boundary of the site. 8There are three areas of communal open space proposed for level 4, being at the north western and north eastern sections of the northern building and over Block B of the southern buildings. 9The northern building and southern buildings are separated by a central walkway across the site between entries at Young Street and at Hunter Street. The buildings are connected above ground level by two bridges. The distance between the northern building and southern buildings is approximately 5m. At ground level, a central path is proposed at about 1.5m wide. There are six units in the northern building fronting the central walkway, and four on the northern side of the southern buildings. The units on the northern building have planters, and courtyards 2m deep off the bedrooms that are located on the southern side. At ground level on the northern side of the southern buildings the four units fronting the central walkway have angled windows. Above ground level, the units fronting the central walkway on both the northern and southern buildings have angled windows. There is an area of communal open space between the western and eastern parts of the southern buildings, with a 13m setback between the balconies on both Blocks A and B of the southern building. 10There are four lifts located in the northern building, accessed from the central walkway, and six stairs, four along the southern side of the northern building and two in the southern buildings, one in Block A and one in Block B. 11The building has a maximum height of 18.04m or 17.79m, depending on where the existing ground level is taken.
Issues 12In its Statement of Facts and Contentions (exhibit 3) the Council contended that:
Planning Controls 14State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies, and cl 30 requires consideration of design quality when evaluated in accordance with the design quality principles in cll 7-18, and the Residential Flat Design Code (RFDC). 15The site is zoned R1 General Residential under the Sydney Local Environmental Plan 2012 (the LEP). The maximum building height is 15m under cl 4.3 of the LEP, and the maximum floor space ratio (FSR) is 1.5:1 under cl 4.4 of the LEP. Clause 4.6 of the LEP permits exception to those development standards. 16Clause 6.14 permits additional floor space if community infrastructure is provided. The site is in Area 6, and if cl 6.14 applies the additional floor space would be 0.5:1, to increase the maximum FSR to 2.0:1: 6.14 Community infrastructure floor space at Green Square (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: (a) Area 5-0.25:1, (b) Area 6-0.5:1, (c) Area 7-0.75:1, (d) Area 8-1:1, (e) Area 9-1.5:1, (f) Area 10-2.2:1. (3) In this clause: Area means an Area shown on the Floor Space Ratio Map. 17The site is subject to flooding. Clause 7.15 of the LEP provides: 7.15 Flood planning (1) The objectives of this clause are as follows: (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into consideration projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. (2) This clause applies to land at or below the flood planning level. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: (a) is compatible with the flood hazard of the land, and (b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. (4) A word or expression used in this clause has the same meaning as it has in the NSW Government's Floodplain Development Manual (ISBN 0 7347 5476 0) published in 2005, unless it is otherwise defined in this clause. (5) In this clause: flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metres freeboard. 18The Sydney Development Control Plan 2012 (the DCP) applies. The site is in the Waterloo Park precinct, which is the area bounded by McEvoy Street to the north, Bourke Street to the east and south, and Botany Road to the west. The DCP provides the locality statement for Waterloo Park at section 2.5.11: The character of Waterloo Park is to be primarily low to medium scale residential development with some increases in height at appropriate locations on Bourke Street and Botany Road. Some existing medium density residential developments in the neighbourhood achieve excellent design standards and illustrate good examples for other new development in the area. The existing community park at Waterloo Park, and the new linear parks created around the water channel are to provide civic amenity and focal points for the neighbourhood. Principles (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 contributory buildings within heritage conservation areas, including streetscapes and lanes. (c) The existing 'Mondrian' development at 2-4 Powell Street, Waterloo is an example of appropriate medium scale residential built form for this neighbourhood in terms of streetscape presentation, architectural design, residential amenity and choice of materials. (d) Encourage mixed use development and active frontages along Botany Road to increase pedestrian activity and create a better public domain. (e) Recognise and support the future function of Waterloo Park as a community node. Encourage an appropriate mix of uses adjoining the park, undertaking future public domain improvements and ensuring new development addresses the open space. (f) Open up the existing water channel to create a linear open space with a shared path that links the northern neighbourhoods to the Alexandra Canal and to Sydney Park. The linear open space and shared path is to be fronted by buildings and activities to enhance the quality of the space. 19Section 4.2 of the DCP applies to residential flat, commercial and mixed use developments. Relevant provisions include building height and storeys (4.2.1), setbacks (4.2.2), amenity (4.2.3), and architectural character (4.2.4). 20Clause 4.2.1.1(1) provides for a four storey height limit. The objective of the storey limits is: Ensure the height in storeys and street frontage height in storeys reinforces the existing or future neighbourhood character. 21Clause 4.2.2 and Figure 5.43 provide for a minimum setback of 2.4m on the McEvoy Street frontage and 6.4m on the Hunter Street frontage. Clause 5.2.10(2) requires a further 1m landscape setback on the McEvoy Street and Hunter Street frontages. A minimum setback of 10m from a stormwater channel on the Young Street frontage is required. The Amenity provisions in section 4.2.3 include provision for solar access in section 4.2.3.1, which requires apartments to receive at least two hours of direct sunlight between 9.00am and 3.00pm into at least 1sqm of living room windows and 50 percent of private open space at mid winter. Clause 4.2.3.7 requires 25 sqm of private open space within minimum dimensions of 4m for ground floor apartments and 10sqm of floor space for upper level apartments with a minimum depth of 2m. Clause 4.2.3.9 provides for ventilation and clause 4.2.3.11 for acoustic privacy. 22Clause 4.2.4 provides: 4.2.4 Fine grain, architectural diversity and articulation Council's policy promoting 'fine grain' encourages elements with different scales within each street block. This can be best achieved through 'fine grain' site subdivision. Where subdivision is not proposed then a number of buildings should be introduced. Where large buildings are proposed, they are to have a contextual variety of different architectural character to provide an individual identities for residents. Architectural character includes massing, articulation, composition of building elements including fenestration, material use and details including building entrances, fenestration, balconies, balustrades, awnings, planters, pergolas, boundary walls, fences etc. Objectives (a) Promote the subdivision of large sites. (b) Introduce fine grain built form and varied architectural character in large developments. (c) Provide identity for residents in large developments by visually differentiating groups of dwellings. (d) Ensure that the scale, modulation and façade articulation of development responds to its context. Provisions (1) The maximum street frontage length of an individual building is: (a) 65m on streets with a width greater than or equal to 18m wide; and (b) 40m on streets with a width less than 18m wide (refer to Figure 4.25). (2) Where the street frontage of the building exceeds the maximum length identified in provision (1), it is to be broken into two or more buildings each with different architectural characters to the street or public domain. (3) Each building facade is to be articulated into smaller elements at a scale or grain that reflects: (a) the use of the building and the various components of the building; (b) the location of the building, or that part of the building relative to pedestrian or outdoor recreation activity; and (c) the details and building elements including building entries, ground floor, lower floors, top floor and roof. (4) Any two buildings are required to be separated by full height breaks consistent with the building separation provisions of the RFDC or as per below whichever is greater. Where the lower of the two buildings is (refer to Figure 4.26): (a) up to 3 storeys, the break is to be at least 4m wide; and (b) 4 storeys and above, the break is to have a width of 1m for each storey of the lower building. For example, where a 7 storey building must be separated from a 12 storey building, a minimum 7m separation is to be provided. (5) Within long street blocks, buildings are to be limited in length, have a variety of facades, articulation, massing and architectural character so the street block presents as a group of buildings rather than a single building. (6) Generally street block development is to provide at least two full height breaks between buildings to enable low level air flow and visual connections between the street and courtyards. Where possible, breaks between buildings are to be aligned with streets and lanes in the surrounding area. (7) Where active frontages are nominated on the Active frontages map, two buildings may be separated by adjoining party walls to ensure continuity of active frontages at ground level. 23It was common ground that cl 4.2.4(4) in the form above incorporates amendments made to the DCP which commenced on 12 June 2014, after this development application was lodged, and that in particular this provision formerly did not refer to the RFDC. The previous version of cl 4.2.4(4) provided that "Any two buildings are required to be separated by a corridor", with that corridor to be at least 4m wide where the lower of the two buildings was up to 3 storeys, and 1m for each storey of the lower building where the lower building is 4 storeys and above (exhibit 14). There is no suggestion in the evidence before me that this amendment was made in order to defeat a project known to be under consideration: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. For the reasons outlined below, in my view it makes no difference whether the version of the DCP as at the time of lodgement of the development application, or as in force at the time of decision, is considered. 24The site is in the Green Square area identified in section 5.2 of the DCP. The Young Street frontage of the site is identified as a water channel open space link (Figure 5.34); and cl 5.2.7.1(2) requires provision of a 10m landscaped setback. 25A planning proposal for the amendment of the LEP has been on public exhibition (exhibit 1, p 266). The planning proposal proposes to amend the LEP to change planning controls for properties identified in the Waterloo Park Precinct, being the area generally bound by McEvoy, George, Bourke and Young Streets Waterloo. The proposal would rezone identified properties, including the subject site, from R1 General Residential to B4 Mixed Uses, "to ensure that existing appropriate non-residential uses can continue to operate and/or expand without undue restriction" (exhibit 1, p 271). The planning proposal increases the maximum height control from 15m to 22m for some identified sites, not including the subject site, to "address a mismatch between height and floor space ratio controls" (exhibit 1, p 271). The height limit for the land on the eastern side of Hunter Street between McEvoy and Powell Streets is proposed to be changed from 15m to 22m (exhibit 1, pp 282, 283).
Evidence 26The hearing commenced on site with a view. The development application was publicly notified and submissions were received from a resident of the Sonoma development and the operator of a veterinary clinic on the corner of Hunter and McEvoy Streets, both raising concerns as to traffic and parking, and on behalf of the International Screen Academy, seeking clarification on certain issues. The International Screen Academy provided a letter of support for the application after review of the amended plans (exhibit D). 27The applicant relied on expert evidence from Mr Anthony Betros (planning), Ms Gabrielle Morrish (urban design), Mr Nemesio Biason Jr (flooding), Mr Tim Chambers (contamination), Mr Ross Jackson (arborist), Mr Con Vink (flooding) and Mr John Romanous (stormwater). The Council relied on expert evidence from Mr Jai Reid (planning), Mr Geoff Baker (urban design), Dr Brett Phillips (flooding) and Ms Tracey Funnell (arborist). 28The experts provided individual Statements of Evidence, and (other than on the issue of contamination) participated in joint conferencing. On flooding and stormwater issues, Dr Phillips and Mr Vink prepared a joint report (exhibit 9), and Dr Phillips and Mr Biason prepared a joint report and a supplementary joint report (exhibits 10, 11). The flooding experts provided evidence at the site view and were not required for cross examination. The arborists agreed in their joint report on recommendations for removal and retention of trees on the site (exhibit 8), and those recommendations have been incorporated in the proposed conditions of consent. Mr Betros, Ms Morrish, Mr Reid and Mr Baker provided a joint report (exhibit 13) and gave oral evidence. Mr Reid and Mr Betros provided a supplementary joint report on waste collection (exhibit 15).
Whether additional FSR is available under cl 6.14 of the LEP 29The proposed FSR of the building is 1.99:1. Clause 4.4 of the LEP provides a maximum FSR for the site of 1.5:1. Under cl 6.14, a building is eligible for an amount of additional floor space, for this site 0.5:1, "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". 30The proposed development includes a flood storage tank, shown on the amended plans (drawing DA100 Issue C) and described by Mr Vink in a letter to Hunter Young dated 16 April 2014 (exhibit 2, p1143). In that letter Mr Vink referred to a draft Alexandra Canal Flood Study carried in 2010 for the City of Sydney Council, and stated: This flood study showed that McEvoy Street, Hunter Street and Young Street would be flooded in the 100 year flood event, with the depth of ponding greatest at the sag point in McEvoy Street. Flood waters would continue to flow southwards towards Bowden Street and ultimately to Alexandra Canal, with many intermediate points subject to ponding of more than a metre in depth. We have prepared a concept for flood mitigation works on the site, which would seek to alleviate flooding at the site and, by reducing the volume of water flowing past the site, benefiting many properties downstream of the site. 31In summary, the works proposed are a flood storage tank with a volume of 1,100 cubic metres, located between the two basement levels; an intake structure inside the property close to the sag point in McEvoy Street to capture flood water as it overflows the footpath of McEvoy Street, at a location chosen so that it would fill only when McEvoy Street is in flood in front of the site, with a surface grate and trash screen; pumps to empty the flood storage tank after the flood has passed, discharging to the street channel in Hunter Street; and a flood sensor located near the roof of the tank to detect water near the top of the tank and close the control valve in the control pit. The cost estimate for these works is $1,036,858 (exhibit 2, pp 1176-1179). 32In his Statement of Evidence (exhibit 7) Dr Phillips referred to the Alexandra Canal Catchment Flood Study and Alexandra Canal Floodplain Risk Management Study & Plan (FRMSP) prepared for the City of Sydney in 2014, noting that while the model prepared for those studies included the subject site, it was established as a regional model for the entire Alexandra Canal catchment. Dr Phillips concluded (at paragraph [55]) that incorporation of the flood storage would lead to a reduction in the 100 year ARI flood level of 0.02m-0.03m on McEvoy Street, while a reduction of 0.04-0.05m was estimated at the intersection of Powell Street and Hunter Street. He noted that some existing nearby properties have been redeveloped with elevated floor levels (1-5 Hunter Street, 11 Hunter Street, 4 Powell Street) and so would not benefit from a reduction in flood level, while another (242 Young Street) is just above the estimated 100 year ARI flood level, and 244-258 Hunter Street is significantly below the modelled 100 year ARI flood event. Dr Phillips referred to regional flood mitigation works reviewed in the FRMSP including an overall long-term strategy under consideration by the Council to provide an underground drainage network with the capacity to capture and convey 20 year ARI runoff to Alexandra Canal, and noted (at paragraph [71]) that this scheme is a conceptual scenario only, that is unlikely to be realised in the short or medium term. 33In his individual Statement of Evidence, Mr Vink noted that while some existing buildings might not benefit by reduced flooding, if they are already above the 100 year flood level they would benefit by increased freeboard, while properties already flooded would benefit in that if the property is redeveloped the floor level could be lower; and that the benefits provided by flood mitigation works would also benefit pedestrians and vehicles by reducing the flood hazard category as defined in the NSW Floodplain Development Manual 2005. 34In the joint report (exhibit 9) Dr Phillips noted that additional flooding assessments had been undertaken, to include a low brick retaining wall around the McEvoy Street frontage. He concluded that a maximum water level difference of +0.02- 0.03m was estimated in McEvoy Street as a result of the proposed development, and that incorporation of the flood storage would lead to a reduction in the 100 year ARI flood level of 0.02-0.03m on McEvoy Street while a reduction of 0.04-0.05m was estimated at the intersection of Powell Street and Hunter Street. Mr Vink considered that with further modelling much reduced adverse effects of the proposed development could be demonstrated. Dr Phillips was of the opinion that on a comparison of surveyed floor levels of existing buildings nearby and peak modelled flood levels for the proposed development with flood storage, the flood storage would provide negligible community benefit. Mr Vink disagreed, and his opinion was that the modelling undertaken by Dr Phillips had demonstrated that the proposed flood mitigation works would reduce flood levels, and that is a measurable community benefit. On considering the Council's Interim Floodplain Management Policy, which requires that development had no adverse impact on flood levels, generally indicated as no greater than 0.01m, to surrounding properties in the 100 year ARI event, Mr Vink considered that the reduction of up to 0.05m estimated by Dr Phillips had to be accepted as being significant. 35The issue is whether the proposed development includes "development for the purposes of...flood mitigation works" so as to be eligible for additional floor space under cl 6.14 of the LEP. 36The Council submits that it is relevant that the provision of the flood mitigation work is not part of Council or Sydney Water policy and it is not community infrastructure sought by the Council; there is no evidence of any likelihood that other developments in the catchment will provide similar infrastructure, and so any "benefit" can only be assessed as a stand alone "benefit"; and the reduction is negligible. The benefit must be a qualitative benefit and not simply a modelled benefit, and must be a material and real, and not negligible, benefit. 37Hunter Young submits that the flood storage is in addition to any flood mitigation works required as a consequence of the development itself. There is no quantitative measure in cl 6.14, and while some benefit is required and that benefit should be more than de minimis, it is the character of the works to which the clause is directed rather than any quantitative change. 38I accept the agreed expert evidence, based on the modelling undertaken, that the proposed flood storage works will result in a reduction in the 100 year ARI level of 0.02m-0.03m on McEvoy Street and a reduction of 0.04m-0.05m at the Powell Street and Hunter Street intersection. While Dr Phillips' evidence as to floor levels of surrounding development would suggest that this may provide limited benefit for other buildings in the locality, I accept Mr Vink's evidence that the benefits to pedestrians and vehicles of a reduction in flooding would also be relevant. 39Clause 6.14 does not specify any quantitative, or qualitative, criterion that might be proportional to the extent of the permitted additional FSR. Nor does it in terms require that the works be part of some larger scheme, or that similar works are proposed by other development. Rather, cl 6.14 requires consideration of whether the development of the land the subject of the application includes development for the specified purposes, relevantly in this appeal, for the purpose of flood mitigation works. The term "flood mitigation work" is defined in the LEP as follows: flood mitigation work means work designed and constructed for the express purpose of mitigating flood impacts. It involves changing the characteristics of flood behaviour to alter the level, location, volume, speed or timing of flood waters to mitigate flood impacts. Types of works may include excavation, construction or enlargement of any fill, wall, or levee that will alter riverine flood behaviour, local overland flooding, or tidal action so as to mitigate flood impacts. 40The proposed flood storage tank and associated works are designed and constructed for the express purpose of mitigating flood impacts, and on the agreed expert evidence would change the characteristics of flood behaviour to alter the level, location, volume, speed or timing of flood waters to mitigate flood impacts in the locality. That change is, on the agreed evidence, measurable. The change is likely to be of some benefit to some of the buildings in the locality, and for others in the locality at times of flooding such as pedestrians and motorists. I am satisfied that cl 6.14 applies and the proposed development is eligible for the additional floor space. That would mean that the maximum allowable FSR for the proposed development would be 2:1.
Exceedance of Height Development Standard 41Mr Betros and Mr Reid agreed that the proposed development exceeds the 15m height limit imposed by cl 4.3 of the LEP. They differed as to the extent of the exceedance, Mr Betros being of the opinion that the maximum height is 17.79m while Mr Reid calculated it at 18.04m. The difference arose because each took a different approach to determining where on the site the "ground level (existing)" as defined in the LEP should be applied. It is not necessary to determine which approach is correct, as the experts agreed that there is no material difference for assessment of whether it is appropriate to vary this development standard whether the exceedance is 2.75m or 3m. 42Hunter Young provided written requests for variation of the height development standard under cl 4.6 of the LEP, one on the basis that the proposed height is 17.79m (exhibit N) and the other on the basis that the proposed height is 18.04m (exhibit O). 43Clause 4.6 relevantly provides: 4.6 Exceptions to development standards (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 Director-General has been obtained. (5) In deciding whether to grant concurrence, the Director-General 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 Director-General before granting concurrence. 44The written requests state that the four storey street wall presentation around the entire site is below the 15m height limit while the portions above "are sustainably recessed and screened by the dense tree canopies which ensures that the 5th storey above will be barely perceptible", and the height variation is also associated with a compliant FSR of 2:1 "which is an orderly and economic use of the site". The proposed heights combined with the recessed upper level "achieve a responsive urban design outcome that is better suited to its context than a proposal with compliant height"; the height variation is associated with a compliant FSR which is a sensible and appropriate planning response given the site's proximity to services and public transport options; the achievement of a compliant FSR is associated with a reasonable built form and is consistent with sound urban consolidation and sustainable development principles; and the essence of amenity and streetscape impacts, combined with no external amenity impacts confirms that the proposed height and floor space is appropriate for the site and the high level of internal amenity emphasis that the height standard is unreasonable or unnecessary. The requests submit that the flexible application of the height standard is appropriate, that the variation is well founded and that the height standard is unreasonable and unnecessary in the circumstances of the application, on the basis that the proposed height:
Internal amenity 62The Council submits that the separation between the north and south buildings, which are 5m apart, creates unreasonable visual and acoustic impacts for the residents of the development. The RFDC would require 9m between habitable and non habitable rooms, and 12m between habitable rooms. While the inclusion of the reference to the RFDC in cl 4.2.4(4) was an amendment to the DCP after the development application was lodged, it should be given significant weight, and when combined with the actual impacts, would lead to refusal of the application. Visual amenity has sought to be protected by the use of screens and courtyards, and those provisions in turn have an adverse impact on light and the openness of a number of apartments, and it is commonsense to accept that at such close proximity there will be an unsatisfactory acoustic impact. 63Hunter Young submits that the proposal meets the RFDC rules of thumb for solar access and ventilation, and the proposal will meet the Council's usual requirements for acoustic privacy by the imposition of conditions sufficient to maintain an appropriate level of acoustic amenity. The development is in a densely populated urban area and silence cannot be the goal, and reasonable levels of noise are expected and are to be tolerated. The criticism by the Council relies on a coincidence of events that are unlikely to occur or if they do occur there exists reasonable responses that would be undertaken. Those events would be: a window to source and receiver open and remaining open even if noise creates disturbance; noise to be generated above usual levels of use; and the source and receiver to be proximate. As to visual privacy, there is no direct overlooking, and the provision at ground level of privacy courts (not the open space for the apartment) is both appropriate and provides good amenity. 64The experts agreed that adequate solar access and cross ventilation is provided, however they did not agree on whether adequate acoustic privacy or visual privacy could be achieved. In her contribution to the joint report Ms Morrish stated that the provision of private courtyards to the bedrooms on the southern side of the northern building and a slatted fence to 1.6m high would provide privacy and visual separation, and provide additional outdoor space for these dual aspect apartments beyond the balcony provided to the living rooms on the northern side of that building. Ms Morrish noted that the apartments on the southern side of the pathway offer their side elevations to the pathway and the windows along the pathway are either to bedrooms to bedrooms that have their main outlook to towards the front of the apartment. Ms Morrish's evidence was that the spatial perception of the pathway would be in the order of 3m, measured from the courtyards to the wall of the building with a low level planter containing landscaping. 65The amended plans (exhibit B) include Ms Morrish's recommendations relating to the ground floor units. For the southern buildings, the amended plans show that at ground level there are two units with kitchen on the northern side with windows to the pathway, and unit BG10 has a study; the other windows opening on to the pathway are bedroom windows. 66Above ground level, all the windows opening on to the central area are bedroom windows. Those windows were described by Ms Morrish as "ear" windows, being angled to direct the view away from each other to preserve outlook and allow light and air to enter the bedrooms. Ms Morrish considered the "ear" windows and arrangement across the separation distance for the upper levels were acceptable. Her evidence was that the windows are oriented away from the adjoining wing and its windows, and provide outlook towards either the street or the courtyard area down the length of the separation space, ensuring there are no privacy issues and an outlook is provided that looks towards broader open space. The rooms are bedrooms and tend to be used most heavily at night so the importance of outlook is reduced in comparison to a living room or balcony, and it is likely that a resident lying on the bed could look towards the angled window and see out along the separation space rather than looking towards the wall of the adjoining building. Closer to the window the outlook would be towards the street or courtyard. The windows are intended to have a sill height of 600mm with a window seat so it would be possible to sit in the window and look out along the separation space; and the units are either dual aspect or corner units and enjoy an excellent outlook to McEvoy Street or Hunter Street and the trees that buffers the units from the streets. In terms of acoustic privacy, the windows are intended to be awning windows and so do not provide a wide space the full height or width of the window to allow noise transference, and the use of a bedroom is unlikely to generate a significant amount of noise that could be considered intrusive and the relationship is bedroom to bedroom. 67I accept that the provision of slatted timber fences along the ground floor courtyards will provide a degree of visual privacy. However, those courtyards are narrow and are located at the ground floor of a 5m wide gap between the northern and southern buildings with the southern side of the northern building extending up to 5 stories. I accept the evidence of Mr Baker that as a consequence, the courtyards of those units on the southern side of the northern building are likely to achieve little light and would have limited useability for any purpose other than that described in Hunter Young's submissions as privacy courts. I accept the evidence of Ms Morrish that the angled "ear" windows at the upper levels would prevent direct overlooking between units across the central gap between the buildings. I accept that they would have some outlook, which Ms Morrish estimated to be around 7-9m, however given the distance across the block I prefer the assessment of Mr Baker that that outlook would in most instances be only on to the courtyard, rather than through to the street. While direct overlooking might be minimised, the measures adopted for protection of visual privacy impact on light and openness for those units facing on to the gap between the buildings. 68The units on the southern side of the northern building and the northern side of the southern buildings adjoin the central walkway which would be used by people accessing the development from any of the three entry points, with potentially more than one movement required to access the centrally located letterboxes and either the lifts or stairs. The walkway is approximately 1.5m wide, with the associated space between the buildings affected by the proposed privacy courts for the ground floor units of the northern building. I agree with Mr Baker that there could potentially be a number of people walking along the central walkway well into the evening. To that extent the situation is not analogous to one of two detached dwellings next to each other, with bedrooms and bedroom windows alongside a common side boundary. 69The proposed Conditions include a condition as to general emission of noise including from mechanical plant and equipment (condition 33), a condition relating to acoustic privacy between units (condition 65), and a condition relating to reduction of noise from external sources (condition 68). The latter two conditions require further reporting as to satisfaction of the acoustic privacy requirements of the DCP, including quantification of the level of impact at the exposed facades from the normal noise of the area. Those conditions would appear to be based on the requirements of cl 4.2.3.11 of the DCP. Clause 4.2.3.11(2) requires a residential development to include acoustic measures to reduce the impact of noise from external sources, including public parks and plazas where people may congregate. It is not clear how these conditions would address noise generated from use of the central walkway by residents and their guests, or from the units on the opposite building, or whether compliance could be achieved while still meeting the requirements for cross ventilation. 70While the separation between the northern and southern buildings meets the minimum measurement provided in cl 4.2.4(4) of the DCP in the form it was at the date of lodgement of the development application, it does not meet the Building Separation provisions in the RFDC. The RFDC suggested dimensions within a development, for internal courtyards and between adjoining sites, would require 12m separation between habitable rooms and balconies for that part of the development up to 4 storeys, and 18m for that part at 5 storeys. In oral evidence Ms Morrish identified two roles of separation in an urban situation, one being the internal courtyard space, and the other being the streetscape. In her opinion the purpose of separation at the street would not be achieved by a large gap in the built form of the street, and the DCP provision for a 4m separation to Young Street and a 5m separation to Hunter Street is what the controls are trying to achieve; that provision applies to this development because it is setting up a block pattern that will continue down the rest of the street. In her opinion, having regard to the side and rear setback provisions in the RFDC, it is not intended that there be wide breaks in street form. Ms Morrish relied on Figure 4.26 in the DCP (referred to in cl 4.2.4(4)) as indicating a continuous built form along the longer boundary (in this instance, McEvoy Street), and breaks of "min 4m separation" along the side frontages (in this instance, Hunter Street). 71Although Ms Morrish's approach would be consistent with the former wording of the DCP, when regard is had to the function of the central walkway as the main circulation area for the proposed development providing access to the stairs and lifts and to the centrally located mailboxes, I prefer the evidence of Mr Baker that the separation sought in the RFDC should apply. The provisions in cl 4.2.4 of the DCP are, as the heading indicates, primarily directed to fine grain, architectural diversity and articulation. The objectives of the Building Separation provisions in the RFDC (RFDC p 28) are broader, and include provision of visual and acoustic privacy for residents, as well as ensuring appropriate massing and spaces between buildings. The RFDC provisions are intended to ensure appropriate urban form, adequate amenity and privacy for building occupants (RFDC p 28), and include co-ordination of building separation controls with side and rear setback controls, and with controls for daylight access, visual privacy and acoustic privacy. I agree with the Council that the amenity provided to the residents should have greater weight than perceived streetscape impacts on Young and Hunter Streets that might result from a minimal compliance with cl 4.2.4(4) of the DCP. I am not persuaded that the minimal separation between the northern and southern buildings, which is significantly less than that provided in the RFDC, results in acceptable internal amenity of the units facing on to the central walkway in relation to visual and aural privacy. 72As a consequence, had I not concluded that cl 4.6(4)(a)(ii) is not met so that the height development standard could not be varied, the poor internal amenity afforded to those units would separately have warranted refusal of the development application.
Conclusion 73As a consequence of concluding that cl 4.6(4) is not satisfied so as to permit a variation to the height development standard in cl 4.3 of the LEP, there is no power to grant development consent to the proposed development. If there were power, the poor internal amenity of the units facing on to the central walkway would also warrant refusal of the application. Those conclusions make it unnecessary to address the two remaining issues, namely bulk and scale, and whether the waste collection arrangements are satisfactory. The former issue raises questions as to consistency with cl 4.2.4(1) and (2) of the DCP, and perceptibility of the lack of a break between the buildings along McEvoy Street and the role of the different architectural treatment for the two halves of the northern building and the significance of landscaping. In relation to the latter, the approach adopted by Hunter Young is to propose storage of waste bins in the basement and their movement to a waste storage area at ground level on Hunter Street for collection, rather than collection from within the basement (exhibit 15). While that proposal might meet Council waste department requirements as an alternative to waste collection from within the basement (exhibit M), unit AG07 adjoins the storage area and is above the garbage holding bay. I accept the evidence of Mr Reid that given its close proximity, the movement of bins and their storage outside unit AG07 is likely to adversely impact the amenity of that unit. If it were otherwise appropriate to approve the proposed development the location and management of garbage storage would need to be addressed. 74The orders of the Court are: (1)The appeal is dismissed. (2)Development Application D/2013/1824 for the demolition of an existing building, excavation of a basement car park and construction of an apartment building at 10-20 McEvoy Street Waterloo is refused. (3)The exhibits are returned except for exhibits A, B, T, U and 3. Linda Pearson 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: 11 November 2014
Hunter Young Pty Ltd
Council of the City of Sydney