Jackson Teece Chesternan Willis v Waverley Council

CASES CITED: Zhang v Canterbury Council [2001] NSWCA 167

APPLICANT Mr I Hemmings, barrister

SOLICITORS Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr S Brockwell, barrister

SOLICITORS Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11413 of 2005 Jackson Teece Chesterman Willis v Waverley Council

1 COMMISSIONER: This is an appeal against the deemed refusal by Waverley Council (the council) of a development application (DA 652/2005) under the Environmental Planning and Assessment Act 1979 (the Act) for a mixed use residential/retail development at 30A Hastings Parade, Bondi Beach (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused. The site and its context 3 The site is at the north west corner of Hastings Parade and Wairoa Avenue. It is rectangular in shape with a frontage to Hastings Parade of 15.24m, a frontage to Wairoa Avenue of 30.57m and a site area of 462.8sqm. The site is developed with a single storey building which was formally used as Bondi Police Station and is currently vacant. 4 Adjoining the site to the north is a two storey residential flat building, which is part of a group of flat buildings which extend to Blair Street. Adjoining development to the west along Hastings Parade is one and two storey houses. On the opposite side of Hastings Parade is Wairoa Reserve, which adjoins Wairoa Public School. Opposite the site on the north east corner of Hastings Parade and Wairoa Avenue is a three storey residential flat building with ground floor parking. On the south east corner is a two storey mixed use development with a ground floor shop. 5 The surrounding area is generally a mixture of residential flat buildings and houses with shops occurring on corner locations. There is no consistent scale, height or architectural style of built or landscape character. The proposal and its history 6 The application was lodged on 18 October 2005 and was notified to adjoining and nearby residents. Council received nine objections. 7 An appeal against council's deemed refusal of the application was lodged on 30 November 2005. Amended plans were submitted on 23 January 2006. Further amendments were made to the plans prior to and during the hearing. These amendments were incorporated into the version "E" plans filed on 13 April 2006, for which approval is sought.

8 The amended plans propose to demolish the police station and construct a part three and part four storey residential flat building with 8 x 1 bedroom units and 2 x 2 bedroom units, a ground level shop and parking for five cars accessed off Wairoa Avenue.

Planning Framework 9 The site was zoned 5(a) Special Uses (Police Station) under Waverley Local Environmental Plan 1996 (LEP 1996). The police station was closed and the site was rezoned on 6 September 2002 to Residential 2 (c1) - Medium and High Density under LEP 1996 (Amendment No 26). The proposed development is permissible with consent. 10 Waverley Development Control Plan No 1 - Multi Unit Housing ( the DCP ) applies to the site. The objectives of the DCP include: · minimise adverse impacts of development on surrounding land and minimise the loss of amenity; · encourage the efficient development of land for multi-unit housing; · encourage appropriate design, siting and construction of multi-unit housing to achieve the orderly, economic and efficient development of land; · ensure that multi-unit housing forms provide a desirable level of facilities for the amenity, health and conveniences of the residents of such developments; · promote high-quality design which is appropriate and compatible to an individual site's opportunities, constraints and physical and cultural context; 11 Land on the opposite side of Wairoa Avenue is zoned Residential 2(a) which reflects its predominantly one and two storey dwelling character. 12 The DCP is performance based. It states that

wherever possible a development should satisfy all the objectives and criteria of all development standards…..Council may approve an application involving departures from the provisions of this Plan if, in its opinion, the application satisfies the aims and objectives of each development standard 13 The parties agreed that with the exception of private open space, the proposal did not comply with the numerical controls in the DCP. The parties held different opinions as to whether, despite this non compliance, the proposal met the objectives of these controls. 14 Mr Gawne provided the following compliance table which was not disputed by the applicant's experts.

DCP 1 - Compliance Check Control Standard Proposed Compliance Density · 0.9:1 620m2 = 1.34:1 2(c1) zone · Affordable housing 1.035:1 = 49% excess No Site 462.8m2 Site Coverage · Max 50% 297m2 = 64% 1 No 2(c1) zone · 231m2 allowed Area B = 5 to 8 car Car Parking - spaces + 1 for shop = 5 spaces. Development is 1 space deficient No 6 to 9 car spaces reqd. 3.2m to 3.46m. 3m. No · Front 6m (4.5/4.75m Required) Building · Side 3 m + ¼ Height excess of 3m = 4.7m Zero to Wairoa Ave. Setbacks · Rear 6m+¼ of height in excess of 6m = 6.75m 2.5m to 2.9m No (6.75m Required) No Separation · 9m to habitable rooms No Distances · 6m non habitable 4 m to the adjoining property building No Unencumbered · Min 30% = 70m2 55m2 = 24% provided No Area 2(c1) zone · Deck 10m2 17m2 per dwelling Yes Private open Space per Unit · Roof terrace 10m2 22m2 per dwelling Yes · Minimum width 3m 3m wide Yes Height of Building · 10m wall height 11.5m to 12m No

1 Site cover increased to 77% with enclosure of car park. 15 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) establishes ten design principles for residential flat development. Under SEPP 65, the Residential Flat Design Code (the Code) must be considered. Part 3 of SEPP 65 provides for the establishment of Design Review Panels. The Joint Randwick/Waverley Design Review Panel (Design Review Panel) considered the application on a number of occasions. The Panel supported the proposal. The evidence 16 The Court heard evidence from the following experts: 17 For the council · Mr W Gawne, town planner 18 For the applicant · Mr A Betros, town planner · Mr R Dickson, architect and urban designer 19 The Court heard evidence on site from the following residents: · Ms J Gadd-Funes, 28 hastings Parade · Ms M Banton, 30 Hastings Parade · Ms P Fiske, 4/57 Wairoa Avenue · Mr Scott, 59 Wairoa Avenue · Ms A Lunney, 61 Wairoa Avenue. 20 The main concern of these residents was the height and bulk of the proposal. They considered the development to be out of character with existing development in the area, with too many apartments, not enough parking or landscaping. Ms Banton was concerned about the impact on sunlight to her windows, noise and privacy impacts particularly from the open car park, access path and stairs which adjoin her boundary. The application was amended during the hearing to change the access to be off Wairoa Avenue via the car park and to enclose the car park and the stairs which face her property. With these changes, the experts agreed that the overshadowing and privacy impacts on her property were acceptable. The issues 21 The Amended Statement of Issues before the Court contained 12 issues which can be categorised into the following key issues:

i) whether the proposal is consistent with the existing and future context of the area. ii) whether the proposal provides adequate internal amenity.

Context 22 The experts held different opinions as to whether the proposal was appropriate in the context of other building in the area. They agreed that it was a prominent corner site and that due to its size, strict compliance with the setback control in the DCP was not required. However, they disagreed as to whether this justified the building envelope and extent of site coverage. The key disagreement related to the zero setback to Wairoa Avenue, the height of the proposal and the extent of site coverage and landscaping. 23 Mr Dickson and Mr Betros held the view that the existing context was characterised by buildings on corners with ground floor shops built to the street alignment and generally higher than other buildings within the block. Mr Betros provided a corner character analysis. He stated that:

The analysis demonstrates that the proposal is consistent and compatible with other corner development in terms of nil or minimal setbacks and greater heights than adjoining developments. 24 Mr Betros also stated that the predominant characteristics of residential flat buildings were side setbacks of 1-1.5m, nil setbacks on corners and 2,3 and 4 storeys with minimal landscaped areas. He considered that other buildings in the block were potential development sites given their 2(c1) zoning. 25 In Mr Betros and Mr Dickson opinion, the shop in the proposed development and its corner location justified the lack of setback to Wairoa Avenue and the height of the proposal. They considered that the height was consistent with the height of the residential flat building on the opposite corner of Wairoa Avenue and with other buildings in the area. 26 Mr Betros and Mr Dickson stated that the three lower levels of the proposal are below the 10m wall height control. The upper level is set back and steps down to follow the topography of Wairoa Avenue. In their opinion the height of the building is consistent with that of a three storey building with a pitched roof and with other buildings in the area. 27 Mr Dickson noted that Wairoa Avenue had a different character to Hastings Parade being a wider and a more major street. In his opinion it was appropriate for the streets to be treated differently. 28 Mr Dickson and Mr Betros acknowledged that there was generally a consistent setback of the other buildings in Wairoa Avenue to the north towards Blair Street. However, they did not consider it necessary for this setback to be continued to the Hastings Parade corner. Nor did they consider it necessary to provide a setback for landscaping. Mr Dickson considered that the area was an urban environment and that a built edge was appropriate. If landscaping was to be provided it should be within a generous setback that was of sufficient depth to provide landscaping. In his opinion narrow strips of landscaping that occurred in other buildings did little to soften and screen the building or provide a landscape setting. Although he considered the setback and landscaping along Hastings Parade to be appropriate despite it being about 3.5m wide. 29 Mr Gawne held the contrary opinion that the proposal did not comply with the quantitative controls in the DCP. He accepted that due to the corner location of the site and its small size some variation to the controls was reasonable, particularly to the setback control. However, he did not consider that the proposal achieved the qualitative objectives of the controls. 30 In Mr Gawne's opinion, there was a consistent setback along Wairoa Avenue which should be continued, particularly as the existing buildings to the north were unlikely to be redeveloped. He did not accept that the shop or the corner location or the corner character analysis justified the nil setback to Wairoa Avenue or the additional height. He considered that the height of the building on the opposite corner was not an appropriate reference as it was higher than other buildings in the area. He noted that the other side of Wairoa Avenue was zoned Residential 2(a) and was predominantly single dwelling houses. In his opinion the proposal would appear higher and not consistent with other building in the area. 31 In Mr Gawne's opinion the height of the building, its overall site coverage and the lack of deep soil planting for landscaping resulted in a building that was too big for its site and not consistent with either the existing character of the area which did not meet the objectives of the controls. 32 Mr Gawne stated that the urban form identified by the applicant's experts was more appropriate for the area from Campbell Parade to Brighton Street which in his opinion had a different, more urban character, than the locality of the site. He thought that the primary context of the development was the block in which it was located rather than the wider locality. 33 Mr Gawne considered that the houses to the west were potential development sites. He acknowledged that the proposed setback to 30 Hastings Parade was minimal but adequate in relation to the existing house. However, he considered it would place potential constraints on its redevelopment.

Findings 34 The parties agreed that, consistent with the decision in Zhang v Canterbury Council [2001] NSWCA 167, the DCP must be the focal point for consideration of the proposal. The key difference in the submissions was whether, despite the non compliance with the numerical controls, the proposal met the objectives of the controls. Mr Hemmings, for the Applicant, submitted that the proposal met the objectives of the DCP. These objectives required consistency but, in his submission, this did not mean sameness. The proposal was a high quality design which was supported by the Design Review Panel. Further, due to its small size and corner location, the site could not comply with the DCP controls but it would have the same impact as a complying development. 35 The key controls in dispute are those in s4.2 Building Envelope - Height, Setback and Density. 36 Due to the setback and stepping of the upper floor, I accept that the proposal achieves the objectives of the height control. The street wall height of the proposal complies with the control and the upper floor will not significantly add to the bulk of the building more than a pitched roof. The proposal meets the variation criteria C2 in that, "the building height at street frontage ….maintain a compatible scale with adjacent development." 37 The proposal also satisfies design solution S2 that:

When viewed from the street, new buildings are no more than one storey higher than existing buildings which contribute to the character of the area. Higher portions of the development are set back at least the width of one room or so that the impact on the street is reduced. 38 The height of buildings in the immediate context is mixed, the street wall height of the proposal is compatible with other buildings. The overall, height is acceptable on the basis that it relates to the building opposite, is a corner site so slightly higher building is appropriate and most importantly, due to its setback, the upper floor will read as secondary structure and its impact on the street is reduced. 39 In reaching this conclusion I am mindful that the height of the proposal cannot be assessed in isolation from other aspects of the proposal, particularly setback. While I find the height to be acceptable I do not find the lack of setback from Wairoa Avenue to be acceptable. The height of the street wall following the street alignment will have a greater impact on the street than if it were setback. I do not accept the evidence of Mr Betros or Mr Dickson that higher corner buildings without setbacks are the character or typology of development in the area. While this form of development occurs it is not sufficient to outweigh the benefits to be gained in the public domain by setting the building back from the street. 40 In reaching this conclusion, I am mindful that the proposed shop is narrow being only 2.6m wide by 12m long. Under the zoning a small shop is permissible which is defined as being:

Small shop means a shop having a floor area not exceeding 60square metres which is used or intended to be used for retailing general grocery merchandise, and which is commonly referred to as a corner shop. 41 The definition does not permit the shop to be used as a café. The feasibility of using the space as a shop was not questioned and it has the advantage of providing activity for part of the Wairoa street front and screening the ground level car park. However, I do not accept that these benefits outweigh those to be achieved by providing a set back from the street. Such a setback would be consistent with that of the other buildings to the north along Wairoa Avenue and would improve the streetscape appearance. It would reduce the impact of height and provide the opportunity for landscaping which would soften the development and the streetscape. I do not accept that landscaping has no role to play in this environment. While the existing character of the area in some places is devoid or has very poor landscaping, I consider that this is a negative feature of the area and one which the planning controls appear to be aimed at addressing. The area is not an urban area such as Campbell Parade where buildings should be built hard up to the street alignment. Particularly for residential developments, it is an area where both the occupants of a development on the users of the street would benefit from a setback with a degree of landscaping. I do not agree that appropriate landscaping cannot be achieved in a 3m wide strip in a seaside location. 42 The objectives of the setback control are:

1. To permit flexibility in the siting of buildings 2) To reduce the impact of development on adjoining land. 3) To ensure adequate separation between buildings for landscaping, open space, solar access and privacy. 4) To integrate development within the established streetscape 43 The Variation Criteria state that:

Variation to the control may be permitted where; C1 building setbacks are consistent with the existing and desired character of the streetscape. C2 variations to other setbacks may be permitted where there is no adverse impact on the amenity of adjoining properties and all other development standards are satisfied. C3 to allow for building to the boundary in areas characterised by such setbacks and where there is no impact on the boundary walls of adjoining neighbours. 44 The Design Solutions recognise that front setbacks may be reduced to be consistent with adjoining setbacks and that projections such as sunhoods into setbacks may occur. 45 The experts agreed that variation to the setbacks was appropriate. For the reasons outlined above the nil setback to Wairoa Avenue is not justified, In relation to the other setbacks, the setback to Hastings Parade is consistent with the other building in the street and is therefore appropriate. The setback to 30 Hastings Parade of the upper floors has an acceptable impact on the existing house, although it may constrain future redevelopment of this site. At ground level the setback of the car park is only about a metre. This will provide sufficient space for screen planting but does not meet objective 3 of the control for a building of this size. However, given the narrow depth of the site such a variation may be acceptable if other aspects of the proposal were satisfied. The setback to 63 Wairoa Avenue is about 3m, while this provides sufficient separation to the adjoining residential flat building, the area is partly driveway and does not enable landscaping to occur. 46 Linked to the non compliance with the setback control is the non compliance with the density control. The density control comprises three components being floor space ratio (FSR), maximum site coverage and minimum unencumbered area. 47 The objective of the control is:

1. To control the size, bulk and scale of developments to reflect the existing and desired future character of the area. 48 The only variation to the standard is for the provision of affordable housing. 49 I note that the size of the site and its corner location place constraints on development of the site and its ability to comply with the DCP controls. Although the corner location also provides opportunities for the development as it does not have the constraint of an adjoining building on three sides. 50 I do not accept that the size of the site, of itself is a reason that the controls should not be complied with. The size of the site is not dissimilar to other sites within the 2(c1) zone which would also not be able to comply with the DCP controls. Consequently, either the controls are wrong or it is reasonable that sites may only be able to be developed if amalgamated with other sites. There has been no attempt to amalgamate the site with an adjoining site. 51 Alternatively the density of development sought to be placed on the site results in the proposal being higher and wider than the controls anticipate which results in greater site coverage and less unencumbered space for landscaping. I accept that the combined effect of the non compliance with the controls generates a development that is too big for its site and its context. 52 The first and second floor each provide 4 x 1 bedroom apartments with large enclosed balconies. The third floor provides 2 x 2 bedroom apartments which occupy significantly less floor plate than the other levels. The size of the development could be reduced to better achieve the objectives of the controls.

53 I note that the Design Review Panel recognised the undistinguished quality of the area. It stated that:

While North Bondi is a densely settled urban area, it is not distinguished by high quality architecture. It is important that new buildings demonstrate a high level of architectural design to lift the quality of the area. This has been achieved in this project when compared to the previous proposals for the site. The most recent iteration is to be commended and will add vitality and interest to this undistinguished area.

The panel supports the intention to make an urban building, engaged with the life of the street, providing an atypical form of housing for the area. 54 Further the Panel stated that the proposed density is appropriate for this corner site. Although it considered that the proposal is deficient in landscape quality and area. I accept that the proposal is of high architectural standard which would architecturally make a positive contribution. However, I do not accept that this out weighs the impact that the bulk and lack of landscaping will have on the context. The comments of the Panel seem to be advocating an "urban" building that can be a landmark for the area. While this may be appropriate, it is not what the planning controls, under which the application must be assessed, anticipate for the area. No reason was put to me as to why a building of high architectural quality but of a bulk and scale more consistent with the area and which provided improved landscaping could not be achieved on the site.

Internal amenity - solar access, daylight and car park entry 55 Mr Dickson stated that:

the bedrooms of each unit will receive five hours of sunlight on 22 June and the balconies and living areas approximately 1.0 hours - with the exception of units 1, 5 and 9, which due to their proximity and the provision of side windows will receive five hours daylight in living areas also. 56 Mr Betros and Mr Dickson considered that the solar access and daylight received by the units was acceptable because the bedrooms were large enough to be used as a living area. The location of the living areas facing Wairoa Avenue was in response to concerns about the potential to impact on the visual and acoustic privacy of 30 Hastings Parade and was consistent with recommendations of the Design Review Panel. The experts considered the orientation to be an appropriate response to the site's size and constraints.

57 Mr Gawne stated that the living areas of units 1-4 and 6-8 would receive about one hour of sunlight in midwinter which he considered to be unacceptable for a new development. He did not consider that solar access to the bedrooms compensated for the limited solar access to the living areas. Further he considered that the timber panels contributed to the loss of solar access and daylight to these units.

58 The amended proposal provides access to the units off Wairoa Avenue through the car park to the entry stairs. Mr Dickson and Mr Betros considered this to be a compromise solution that was acceptable due to the constrained nature of the site, the small size of the development, the lack of vehicle and pedestrian conflict and the proposed treatment of the car park. Mr Gawne considered that entry to the units through a car park provided unacceptable amenity for a new development in this location. Findings

59 In relation to solar access and daylight, I do not accept that the constraints of the site are so onerous to justify the low level of solar access to the living areas. The solar access partly arises from the constraints but also from the density of development proposed for the site. I note, the upper floor with only two units achieves acceptable solar access.

60 As I understand it the purpose of the timber screens is to provide privacy from the street, weather protection from the south and aesthetics. While the screens add interest and architectural detail to the façade they also reduce the amount of solar access and daylight and add to the bulk of the building. The site's location is not such a hostile environment that it needs to be protected from the street or the elements. In addition the street would benefit from interaction between it and the development.

61 In relation to the access through the car park. I agree that it is a compromise solution and it would be preferable for the access and the stairs to be directly off the street or via a foyer but I accept that of itself it would not be a reason to refuse the development.

Orders 62 For the above reasons the Orders of the Court are:

2. The development application for a mixed use residential/retail development at 30A Hastings Parade, Bondi Beach, is refused.

          Annelise Tuor
          Commissioner of the Court

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