COMMISSIONER: This is an appeal against the refusal of DA201500269 to demolish all existing improvements and construct a part 3 and part 4 storey long day child care centre for 135 children aged from birth up to 6 years at 1-7 Albany Road, Stanmore (the site). The centre will operate Monday to Friday between 7pm and 6pm, excluding public holidays.
The council maintains that the application should be refused because the development has :
excessive floor space ratio (FSR), and
unacceptable impact on the character of the area.
The matters of unsatisfactory internal layout, noise and adequacy of car parking were not pressed by the council following additional information although a number of residents who provided evidence on the site inspection maintained their opposition to the development on noise and adequacy of car parking, together with the other matters raised by the council.
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The site
The site is situated on the southern side of Albany Road, on the corner of Bridge Road. Salisbury Lane is situated along the southern boundary. The site comprises two lots that are described as Lot 23 Section X in DP 4705 and Lot 24 Section X in DP 4705. It is irregular in shape and approximately 771.2 sq m in area and contains a single storey warehouse building with internal circulation/parking area.
The adjoining property at 9 Albany Road contains a single storey detached dwelling house. The surrounding streetscape in Albany Road consists of single storey semi-detached dwellings. There are generally 1-2 storey mixed commercial and industrial uses situated to the north, south and east along Bridge Road. There are a number of 3-4 storey buildings in Bridge Street towards Parramatta Road in the north.
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Relevant planning controls
The site is within Zone B5 Business Development under Marrickville Local Environmental Plan 2011 (LEP 2011). A "child care centre" is a permissible use, with consent, in this zone. Clause 2.3(2) provides that the "consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are:
• To enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and that support the viability of, centres.
• To enable a purpose built dwelling house to be used in certain circumstances as a dwelling house.
• To support urban renewal and a pattern of land use and density that reflects the existing and future capacity of the transport network.
Clause 4.3(2) provides that the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. The Height of Buildings Map does not provide a maximum height for the site so there are no limitations imposed on height imposed by cl 4.3.
Clause 4.4(2) provides that the floor space ratio (FSR) of a building on any land is not to exceed the maximum FSR shown for the land on the Floor Space Ratio Map. The Floor Space Ratio Map shows the letter "K" for the site which represents a maximum FSR of 0.85:1. The proposed buildings exceeds the maximum FSR and the applicant has provided a written request, under cl 4.6, to show that strict compliance with the 0.85:1 FSR development standard is unreasonable and unnecessary, in this case. While accepting that there is an exceedance to the FSR standard, the parties differ on the extent of the exceedance.
Clause 5.10 addresses Heritage conservation and is relevant as the site is located adjacent to the Annandale Farm (Stanmore) Heritage Conservation Area (Annandale Farm HCA).
Marrickville Development Control Plan 2011 (DCP 2011) applies. Relevantly, pt 2.1 provides Generic Provisions Urban Design, pt 5 provides requirements for Commercial & Mixed Use Development, pt 7.1 provides requirements for Child Care Centres, pt 8 provides requirements for Heritage and pt 9.41 provides the strategic context of Bridge Road.
Pt 8.2.8 of DCP 2011 addresses the Annandale Farm HCA with the Statement of Significance stating:
The Annandale Farm Heritage Conservation Area is of historical significance as a distinctive area developed 1884 to 1910 from the last subdivisions (1884 to 1906) of the Annandale Farm Estate, an important early colonial estate. The association with Annandale Farm remains through discernible elements in the landscape (such as street alignments) following the original Farm boundaries and the potential gatehouse lodge now relocated to the rear garden of 96 Corunna Road.
The Annandale Farm HCA is a representative residential area of late Victorian and Federation period housing, corner shops and retailing and includes some high quality examples from the different architectural periods. Streetscapes are highly cohesive and roofscapes rhythmical due to the staged subdivision release and the development of many groups and runs of houses of a single pattern.
It is distinguished from surrounding areas by its later development and predominance of late Victorian and Federation period housing, wide streets, and by its most substantial housing being Railway Villas located at a low point purposely to attract affluent potential purchasers to the subdivision.
The Annandale Farm HCA is considered locally rare (a heritage criteria) as an area, which retains discernible elements in the landscape (such as street alignments), which relate to an early Colonial estate.
The HCA also has the potential to demonstrate significant archaeological relics in the vicinity of the former farmhouse, outbuildings, garden areas and burial ground.
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Floor space ratio
The requirements
Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly state:
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
The objectives of the FSR standard are set out in cl 4.4 (1) and are:
(a) to establish the maximum floor space ratio,
(b) to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas,
(c) to minimise adverse environmental impacts on adjoining properties and the public domain.
The extent of the breach of the FSR standard
There was a disagreement by town planners, Mr Andrew Minto, for the applicant and Mr Daniel East, for the council on the calculation of the FSR although they agree that the 0.85:1 standard is breached. Mr Minto maintains that the FSR is 1.02:1 whereas Mr East calculates the FSR at 1.43:1. The difference depending on whether parts of the floor area are included as gross floor area (GFA).
The written request
Mr Minto prepared a written request in accordance with cl 4.6 to show why the variation to the height standard is acceptable. The cl 4.6 written request states that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case as the objectives of the zone and the objectives of the FSR standard are complied with. Specifically, the proposal is considered to satisfy the FSR objectives in that the proposal:
provides a building density and bulk which is in keeping with the character of surrounding development fronting Bridge Road. In this regard the proposal does provide for a 3 storey street edge wall fronting Bridge Road and does step down in height adjacent to the single storey property to the west (whilst maintaining the existing wall adjoining that development),
will not result in any unreasonable amenity impacts upon the adjoining or nearby residential properties. This is considered to particularly be the case in relation to visual and acoustic privacy and overshadowing,
will not result in any unreasonable streetscape impacts and is considered to be of good design,
there are no detrimental impacts arising as a result of the proposed non-compliance,
the building density and bulk provides for a built form outcome which is consistent with the desired future character of the locality. In this regard the desired future character for the Bridge Road Locality is set out at cl 9.41 of DCP 2011 and specifically at cl 9.41.2, and
the building will not result in any adverse impacts on any identified heritage items, period buildings or nearby traditional streetscape.
In relation to the objectives for the B5 - Business Development zone it is submitted that the proposal will provide for a business use that requires a large floor area, in a location that is close to, and that will support the viability of, centres
The written request further states that a contravention of the FSR development standard is justified on environmental planning grounds given that:
the council via its Section 94/94A Contributions Plan acknowledges that there is a shortage of child care places within the Marrickville LGA.
the proposal seeks to address this shortfall by providing for 135 child care places in a built form which is responsive to its context and the desired future character for the locality.
the proposal will not result in any unreasonable amenity impacts upon adjoining properties.
The written request concludes that there is no public benefit in maintaining the development standard in this instance given the circumstances of the case. The positive benefits arising from the provision of additional child care places upon the site and within the locality and the absence of any unreasonable detrimental impacts, so a variation of the maximum FSR requirements of cl 4.4 of LEP 2011 is appropriate in this instance.
The council's response
Mr East does not fully respond to the written request in the joint statement with Mr Minto but states that the proposed development has an excessive FSR and is contrary to the objectives of the principal development standard and is considered to be an overdevelopment of the site. Any variation to the development standard would not be supported and the submitted cl 4.6 variation is not well founded or worthy of support.
Mr East considers that written objection fails to adequately give sufficient planning reasons to justify the extent of the FSR breach. The non-complying elements of the building contribute to the bulk and scale of the development, resulting in a built form that is not compatible with its surroundings and contributes to poor internal functioning of the development itself.
The assessment framework
Clause 4.6 of LEP 2012 imposes three preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to be satisfied that the written request demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). This precondition also requires the Court to be satisfied that the written request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).
In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]:
The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.
A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.
The extent of the breach of the FSR development standard
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Orders
The orders of the Court are:
1. The appeal is dismissed.
2. DA201500269 to demolish all existing improvements and construct a long day child care centre at 1-7 Albany Road, Stanmore is refused.
3. The exhibits are returned with the exception of exhibits A and F.
G T Brown
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: 19 April 2016
Clause 4.5 relevantly states:
4.5 Calculation of floor space ratio and site area
(1) Objectives
The objectives of this clause are as follows:
(a) to define floor space ratio,
(b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to:
(i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and
(ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and
(iii) require community land and public places to be dealt with separately.
(2) Definition of "floor space ratio"
The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.
(3) Site area
In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be:
(a) if the proposed development is to be carried out on only one lot, the area of that lot, or
(b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.
In addition, subclauses (4)-(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development.
The Dictionary to LEP 2011 defines "gross floor area" as:
gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes:
(a) the area of a mezzanine, and
(b) habitable rooms in a basement or an attic, and
(c) any shop, auditorium, cinema, and the like, in a basement or attic,
but excludes:
(d) any area for common vertical circulation, such as lifts and stairs, and
(e) any basement:
(i) storage, and
(ii) vehicular access, loading areas, garbage and services, and
(f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and
(g) car parking to meet any requirements of the consent authority (including access to that car parking), and
(h) any space used for the loading or unloading of goods (including access to it), and
(i) terraces and balconies with outer walls less than 1.4 metres high, and
(j) voids above a floor at the level of a storey or storey above.
Mr East calculates that the GFA of the proposal is 1,101sq m that results in an FSR of 1.43:1 (or a 68.2% departure). He states this area falls within the definition of GFA in LEP 2011 as parts of the 'lobby' and 'safe haven' areas of the staircases (excluding stairs) are horizontal circulation areas rather than vertical circulation areas, which are excluded from the definition of GFA. Mr East also states that the play area on Level 1 should be included as GFA given that only 12m or 10% of the perimeter has a wall that is less than 1.4m and only 78 sq m or 25% is open to the sky. Mr East states that this area should be included as GFA given the deep recess of the play area which negates the need for weather protection on the internal play area walls. In addition, the impacts of the visual bulk of the proposed design would be equivalent to an enclosed structure, which would be included as GFA.
Mr Minto accepted that the 'safe haven' areas of the staircases could be included as GFA although this would only increase the GFA by around 10 sq m. He rejects Mr Easts inclusion of the play area on Level 1 as this area is excluded from the definition of GFA in that it this area is properly described as "terraces and balconies with outer walls less than 1.4 metres high'" in pt (i) of the definition of GFA.
With an understanding of the plans and the means of calculating FSR, I agree that the 'lobby' and 'safe haven' areas of the staircases are GFA in that they are not "common vertical circulation" areas". On the more significant area associated with the play area on Level 1, I agree with Mr Minto that this area is excluded as it falls within the exclusion of "terraces and balconies with outer walls less than 1.4 metres high'" although there is some practical merit in the conclusions of Mr East about the necessary external play areas associated with a child care centre adding to the bulk of the building but not being included as GFA.
The zone objectives
The zone objectives are:
• To enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and that support the viability of, centres.
• To enable a purpose built dwelling house to be used in certain circumstances as a dwelling house.
• To support urban renewal and a pattern of land use and density that reflects the existing and future capacity of the transport network.
The zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the FSR standard can be supported. The zone objectives relate principally to the allocation of appropriate land uses rather than, in this case, whether a variation to the FSR standard is acceptable. The relationship of the development and the zone objectives required by cl 2.3(2) is a different question to that raised by cl 4.6.
As there are no issues that are raised in the zone objectives that give rise to any questions on the appropriateness or otherwise of the variation to the FSR, pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the zone objectives and as such would not be a reason to refuse the application.
The FSR standard objectives
The FSR objectives in cl 4.4 are:
(a) to establish the maximum floor space ratio,
(b) to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas,
(c) to minimise adverse environmental impacts on adjoining properties and the public domain.
Objective (a) is not relevant given that the FSR standard is established by cl 4.4(2).
Objective (b) - to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas,
Objective (b) seeks to control "building density and bulk in order to achieve the desired future character for different areas". The area around the site is likely to have a mixed future character based on the zoning of the land. On the opposite side of Bridge Road, the area is zoned IN2 Light Industrial with a maximum height of 9.5m and a maximum FSR of 0.95:1. The zone objectives seek "to provide light industrial, warehouse and related land uses". The properties on the opposite side Bridge Road (including the site) are zoned R4 High Density Residential, B4 Mixed Use and B5 Business Development. The site is zoned B5 Business Development, as are the corner properties to the north and south of the site. The R4 High Density Residential and B4 Mixed Use zoned sites have a maximum height of 14 m and a maximum FSR of 0.6:1 whereas the B5 Business Development zoned sites have no maximum height and a maximum FSR of 0.85:1. The area behind the site and other properties on this side of Bridge Road are zoned R2 Low Density Residential with a maximum height of 9.5 m and a maximum FSR of 0.6:1. This area is included within the Annandale Farm HCA.
With the benefit of the site inspection, I am satisfied that notwithstanding the range of zonings surrounding the site, a greater affinity exists with the properties on the same side of Bridge Road in establishing "the desired future character" than the properties on the opposite side of Bridge Road. This is because firstly, their closer proximity of the site and secondly, their more sensitive nature being within the Annandale Farm (Stanmore) Heritage Conservation Area. In response to potential impact on the Annandale Farm HCA, the applicant provided expert heritage evidence from Mr Robert Staas and the council provided expert heritage evidence from Ms Kate Napier.
Ms Napier states that the character of the proposed building lacks a sufficient response to the immediate context and does not address the principles set out in DCP 2011 Part 2 Urban Design. These principles drive the desired future character across the local government area. The immediate context includes the Albany Road streetscape and the Annandale Farm HCA. The lack of response to this context is evident in the 4 storey scale, the zero boundary setback on Albany Road, the minimal landscaping on Albany Road and on the site. Beyond the immediate visual context, there are examples of different solutions to the transition between the Annandale Farm HCA and the Bridge Road buildings. These examples range in consideration from abrupt to polite. At the polite end of the scale is 1-7 Bridge Road which provides a 12m setback from the adjoining single storey lot in the Annandale Farm HCA, and a landscaped zone.
While the retention of the boundary wall will addresses the immediate neighbours on site amenity, the retention of the wall does not mitigate the visual impact of the proposal in the streetscape. The stepped form offers a degree of transition but it is insufficient to mitigate the 4 storey scale or the qualitative design issues mentioned
Mr Staas states that the proximity to the adjacent Annandale Farm HCA does not create a situation that is incompatible with the desired future character of the area as set out in DCP 2011. There are no controls in the DCP 2011 in relation to development in the vicinity of a conservation area and no development controls in pt 9.41 of DCP 2011relating to the Bridge Road Precinct. The proposed design has maintained the existing location and height of the boundary walling to the western perimeter of the site and set back beyond that to ensure there is an acceptable transition from the single storey building to the new development. Other development along the length of Bridge Road in similar relationships to the adjoining Annandale Farm HCA to the east and the west do not demonstrate any significant transition of scale or character to the single storey development to which they adjoin. Mr Staas states that it is clear that the delineation of the Annandale Farm HCA took into account the discrepancy in character and scale of sites on Bridge Road and their existing and future development potential.
Mr Staas notes that the design specifically adopts the retention of the existing boundary wall as the western edge of the site because it retained the existing relationship in terms of scale, proximity and character to the adjoining single storey house which has appropriate. The upper levels of the proposed child care centre steps back from this situation to provide a scale transition to the adjoining development. Additional stepping is provided to the Albany Street frontage to reduce the potential visual impact on the settings of housing in the adjoining Annandale Farm HCA.
When the need to consider "the desired future character" in the heritage context in which it is located, I agree with the conclusions of Ms Napier. I am satisfied that the proposed amount of GFA manifests itself in a building that has excessive density and bulk for its location adjoining the Annandale Farm HCA and the Albany Road streetscape which is highly cohesive with consistent roofscapes and with many groups and runs of houses of a single pattern. I agree with Ms Napier that there is a no genuine attempt to respond to this context with the building having four storeys, a zero boundary setback on Albany Road and minimal landscaping on Albany Road and on the site.
If the absence of a maximum height standard in LEP 2011 was a reason for a building of the size proposed, then this reason is misguided given the need to consider the FSR standard and its location adjoining the Annandale Farm HCA.
For the reasons above, I find that the proposed development is inconsistent with FSR objective (b) and is not in the public interest and as such development could be refused for this reason alone.
Objective (c) - to minimise adverse environmental impacts on adjoining properties and the public domain.
If the words "environmental impacts" are given a broad meaning then there are some similarities with the consideration of objective (a), particularly when viewed from the public domain. From Albany Road, the visual appearance of the proposed building would be in stark contrast with the predominant and consistent single storey period housing in Albany Street. In my view, this an unacceptable visual impact from the public domain. Like Ms Napier, I agree that the retention of the existing wall on the common boundary and the stepped form of the upper levels offers a degree of transition but it is insufficient to mitigate the bulk and scale of the development from the public domain.
For the reasons above, I find that the proposed development is inconsistent with FSR objective (c) and is not in the public interest and as such development could be refused for this reason alone.
Is compliance with the development standard is unreasonable or unnecessary in the circumstances of the case?
I am not satisfied that Mr Minto has established that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. I do not disagree with Mr Minto that the building provides a building density and bulk which is in keeping with the desired character of surrounding development fronting Bridge Road. The issue with density and bulk is with the appearance from Albany Road. Similarly, the unreasonable streetscape impacts are when viewed from Albany Road. It follows that I do accept that firstly, there are no detrimental impacts arising as a result of the proposed non-compliance, secondly, the building density and bulk provides for a built form outcome which is consistent with the desired future character of the locality and thirdly, that there are no adverse impacts on any period buildings or nearby traditional streetscape.
All the existing improvements on the site are to be removed and in the absence of any reason why a development that complies with the development standard cannot be accommodated on the site, then compliance cannot be said to be unreasonable or unnecessary and as such development could be refused for this reason alone.
Are there sufficient environmental planning grounds to justify contravening the development standard?
Mr Minto states that there sufficient environmental planning grounds to justify contravening the development standard for two principal reasons. First, a shortage of child care places in the local government area and secondly, there are no unreasonable amenity impacts upon adjoining properties.
Both of these reasons should be rejected because they are not valid environmental planning grounds that should be used to support a variation to a FSR development standard. On the shortage of child care places in the local government area; it is necessary to distinguish between the construction of a building and the use of that building. In my view, it would be unsound to rely on the use of the building for a child care centre for a variation to the FSR standard simply because that use may change in the future. While the need to address a shortage of child care places in the local government area is a valid planning consideration, it should not be achieved in the manner sought in this application.
Second, it has been long established that the absence of environmental harm is not a valid reason to support a variation to a development standards (Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986 Cripps J). While this decision referred to an objection under State Environmental Planning Policy No1 - Development Standards the comments are still valid.
For the reasons in the preceding paragraphs, there are no environmental planning grounds to justify contravening the development standard and as such, development could be refused for this reason alone.