Kolln v Sydney City Council

DATES OF HEARING: 27/05/2005, 01/07/2005, 15/07/2005, 03/08/2006, 29/08/2006 and 30/08/2006

APPLICANT Mr J Atkin, barrister SOLICITORS Macedone Christie Willis LEGAL REPRESENTATIVES:

RESPONDENT Mr C Leggat, SC SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Background 1 This appeal was lodged against council's refusal of a development application for a residential townhouse development at Forest Lodge. For the appeal a number of issues were identified, which can be summarised as following: o bulk and scale of the proposal, in terms of its compliance with the FSR development standard and its compatibility with neighbouring development, o building design elements, o drainage and flooding o access. The site 2 The development site is located on the north-western corner of Foss Street and consists of two allotments (Lot 1, DP 110081 and Lot K DP110081), which are physically separated by another allotment (Lot J). To the rear of the lots is a steep embankment that rises approximately 7 m to a large open area, known as "Wood Street" reserve.

3 Lot I is rectangular in shape and approximately 151.7 sq m. Currently, a traditional 2-storey semi-detached terrace occupies approximately half the 9 m Foss Street frontage with a footprint of approximately 41.42 sq m. The area is vacant and overgrown.

4 Lot K is irregular in shape with a total site area of approximately 341.4 sq m. The south western boundary of the subject site is separated from Orphan School Creek by a 1 m wide public footpath. The western boundary abuts the "Wood Street" reserve. The frontage to Foss Street is approximately 3 m. The site is presently vacant and heavily vegetated.

5 The southern boundary of the property adjoins Orphan School Creek, which contains drainage works/overland flow path, landscaping and pedestrian pathway. The proposal 6 The proposed development involves the construction of 3 new, 2-storey townhouses, containing 2 x 2 bedrooms and 1 x 3 bedrooms on Lot K. These townhouses are situated over a basement carpark for 6 vehicles, which includes a turntable to facilitate manoeuvrability.

7 The proposed Unit 3 is situated on the western end of the site, adjacent to Orphan School Creek. As such, it does not have direct frontage to a public road and the general pedestrian entrance the unit is via a common walkway (approximately 1m wide) along the front of Units 1 and 2, atop the basement garage.

8 On Lot I, it is proposed to construct a 2 bedroom infill terrace house.

9 The floor space ratio (FSR) of the proposal is 1.9:1.

10 It is also proposed to dedicate/transfer a 2 m strip of land adjacent to Orphan School Creek for access and landscaping purposes.

Planning controls State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) 11 This SEPP requires consideration to be given to any contamination and remediation matters arising out of the development application. Leichhardt Local Environmental Plan 2000 12 The site is zoned Residential under this LEP and proposal is permissible with consent. Of relevance in this matter, cl 19 contains a development standard for FSR, which is 0.7:1, in the subject matter. Leichhardt DCP 2000 Leichhardt Development Control Plan No. 23 Orphan School Creek

The evidence 13 Detailed evidence on behalf of council was presented by: o Ms L Evans, specialist planner, City of Sydney (Exhibits 4 and 8), o Mr P Donley, senior manager (civil engineer), City of Sydney,

14 For the applicant, evidence was presented by: o Mr A Martin, consulting town planner, Exhibit (4 and O), o Mr I Baker, consulting engineer, Exhibits (B, H, P and 5), o Mr C McClaren, traffic engineer (Exhibit N), o EIS Consulting, environmental site investigation (Exhibits L and M), o Jeffery & Katauskas, geotechnical report (Exhibit K), o Mr C Farinola, structural engineer (Exhibit D). Discussion of the evidence

15 The threshold issue in this matter concerns the bulk and scale of the proposal, due to its non-compliance with the FSR development standard in Leichhardt LEP. Consequently this necessitates determination of a SEPP 1 objection. A significant component of the floor space is attributed to the basement garage, because it protrudes more than 1 m above the ground, adjacent to Orphan School Creek (this component was estimated to be in the order of 0.8:1).

16 In response to this issue, Mr Martin presented the SEPP 1 objection to the provisions of cl 19(2) of the LEP on the basis that the prescribed maximum FSR of 0.7:1 represents a development standard. As the LEP does not state any specific objectives for this development standard, the planners generally agreed that the underlying objective of this development standard is: "to control bulk and scale to achieve consistency with existing built form and character."

17 Accordingly, Mr Martin referred to a number of associated planning controls, particularly the general objectives of the LEP, in supporting the SEPP 1 objection on the following basis: o The development has a 2-storey presentation to the adjoining terrace houses where it is most critical to comply with the established parapet levels. o The highest point of the basement is situated at the south-western corner of the site being the furthest point from the terraces located in Foss Street. o The wall of the basement is setback 2 m from the southern boundary and is integrated into the front facade of the building. o The additional basement height does not affect the natural features of the site particularly given the fact that the site has to be remediated due to contamination. o The additional basement height causes no direct impact on the living enjoyment of any property with respect to views, privacy or general amenity. o The proposal maintains the residential character of the area and sense of place characteristics and must be viewed in context of the surrounding medium to high-density development. o A basement protruding 1 m is permitted and therefore the proposed basement protrudes an additional 120 mm - 690 mm which is the true extent of the additional mass. o Any development on the site would have to be raised in the order of 500 mm above the existing ground level due to flood levels and as such a subfloor area or raised slab would form part of any residential development. o An assessment of the visual catchment should not ignore the backdrop created by the City Quarter (Sterling) development site and as such the marginal increase in height of the basement is not significant in this context. o The land does not expose water to any open creek or waterway and a nonconforming FSR has no relevance to the buildings environmental performance. o The area directly adjacent to the exposed basement forms part of the subject site and if approved will improve the vista adjacent to the existing Sydney Water land zoned open space.

18 Mr Martin also carried out a detailed merit assessment of the various aspects of the proposal relative to the other development controls, so as to conclude that strict compliance with prescribed FSR control is considered to be unreasonable and unnecessary in this instance. He says that the excess GFA provides a development that is contextually appropriate and environmentally sensitive being equal to that of a building which complies with a development standard. FSR is simply one tool used to manage and control bulk, scale and density and in this example the development is totally acceptable, because it achieves the relevant objectives in LEP 2000.

19 Against this, Ms Evans argued that the exceedence of the FSR standard confirmed the excessive bulk and scale of the building, which she considered did not demonstrate reasonable compatibility with the neighbouring buildings as required by the various development controls. Furthermore, she says that the proposed town house style development is not consistent with the terrace house type development, prescribed in the DCP.

20 For the assessment of the SEPP 1 objection, both parties referred to various aspects of the qualitative and quantitative development controls. I accept this approach as reasonable to assess the merits of the proposal, in conjunction with the ultimate determination of the primary SEPP 1 objection.

21 Mr Leggat's primary submission is that the bulk, scale and design of the proposal is not consistent with the character of the area because of the unsatisfactory, common entrance to Unit 3, the inconsistent facade elements on Unit 3, the necessity for a 3.5 m wide roller door and associated 3.5 m wide access over the footpath. He submits that assessment of the proposal against the following relevant controls, should result in the conclusion that proposal should be refused. 22 According to Mr Leggat's submissions, the DCP identifies certain elements, then states principles, rationale, guidelines and control for the respective neighbourhoods. Of relevance in this matter, the DCP process provides: Section B 1.0 deals with residential development, wherein B 1.1 Design Elements contains the following principle: o Design new housing to integrate well with the neighbourhood and be consistent with and enhance existing street subdivision patterns, street character and maintain amenity to adjacent residents. The stated rationale is: o Local area characteristics are set out in the Suburbs Profiles (A10.0). In designing the layout of new housing development, consideration the prevailing street patterns and lot subdivisions is the first step. The scale of the proposal will determine the extent to which the controls outlined below are necessary and applicable. The controls include: o Orientate building to address street and public spaces.

Section B 1.2 deals with Design Element 2 - building form, envelope and siting wherein the principles are: o Plan and design new housing, and additions and alterations to existing housing, to maintain and enhance the established scale and character of the streetscape. Match and complement existing building forms, private open space and landscape areas … Section B 1.5 deals with Design element 5 -Elevation and materials, on the basis of the following principle: o Design to respect the elevational character and appearance of the streetscape and locality. The rationale is: o The elevational design of a building is as important as the building bulk and scale. The arrangement of openings in walls is visually important to the quality of the streetscape, especially the placement and proportions of windows and doors. o Development should take reference from and complement the existing character of the streetscape in terms of scale, architectural style and materials. Alternatives may be considered at the discretion Council.

Section B 1.9 deals with Design Element 9 - Corner site controls.

23 The associated controls deal with the suburb profile for Orphans School Creek. The DCP acknowledges that development along Orphans School Creek consists of modern 2 and 3-storey townhouses. The surrounding open space provides a buffer zone between the creek line and the residential dwellings varying from 3m to 35m in width. Accordingly the desired future character controls include: + allow for contemporary redevelopment where it is complementary to the existing streetscapes and character of the Neighbourhood; + retain and enhance the consistent 2 storey terraced streetscapes in the northern section of the Neighbourhood and along Bridge Road; + preserve the architectural consistency found in the detail of continuous rows of attached dwellings, small terraces and cottages.

24 From my consideration of the respective planners evidence and the aforementioned controls, it appears to me that Ms Evans opinion that the desired form of development for this neighbourhood is for dwelling houses, which include elements of the adjoining and neighbouring terrace houses. She does not consider the proposal adequately satisfies the desired future character criteria, because of its excessive bulk necessitated by the basement carpark and its lack of verticality, common to the terrace housing features. Conclusions

25 Having considered the evidence, the submissions and undertaken the view, I do not consider this application merits consent. The primary hurdle for determination concerns the SEPP 1 objection to the FSR development standard in the LEP. The prescribed maximum allowable FSR is 0.7:1. The proposed FSR is 1.9:1.

26 Considering that the underlying objective of this development standard is to allow residential development of a bulk and scale that complements neighbouring developments, it seems to me that such new development should be site responsive and endeavour to reflect the architectural features of the attached dwelling houses. I give added weight to this requirement because the site is located within a designated conservation area.

27 However, in this case, the land is flood liable due to its proximity adjacent to Orphan School Creek. This necessitates the floor levels being raised and allows inclusion of the basement garage. But the basement garage protrudes more than 1 m above the ground and consequently its floor area is included in the FSR calculations, resulting in an exceedence of (of the development standard) by approximately 2.7 times.

28 The resultant development then is of a residential flat style building, with basement parking that does not adequately complement the elements of the predominant, existing terraces in Foss Street which do not have off street parking or gutter crossings. Accordingly Ms Evans says the proposal is not sufficiently responsive to the controls to merit consent. I accept this conclusion because in my assessment: + the proposal represents an overdevelopment of site, which is exacerbated by the basement carpark and flooding liability of the property; + the resultant form of the residential flat building atop the carpark demonstrates little, if any consistency with the neighbouring continuous row of attached dwellings, terraces, which have significantly reduced FSR's as compared to the proposal; and no off street parking; + the access and amenity of the units is compromised by the shape of the lot, necessitating the main pedestrian access to Unit 3, via the common 1m wide pathway adjacent to kitchen/entrances of the other Units 1&2. I consider this feature is inconsistent with the Foss streetscape and represents an undesirable design and amenity feature; + the scale of the development and the basement carpark necessitates alterations to the Foss Street road formation by way of construction of a reverse crossfall on the road (in the order of 7% as compared to the normal 3%), to facilitate mounding of the basement driveway to prevent floodwater entry. This then result in a maximum driveway gradient in the order of 25%.

29 Taking into account these s 79C considerations in terms of the underlying objectives for the FSR development standard, I am satisfied that when the tests for SEPP 1 objections are applied, particularly whether a complying development would likely achieve the objectives of the development standard, then the subject application fails. I rely on Ms Evans opinion that compliance with the underlying objectives of development standard in this case, has not been demonstrated to be unreasonable or unnecessary.

30 Whilst this results in the failure of the development application, I briefly address the other significant issues.

31 Firstly, the drainage and flooding issue as the site is likely to be affected by significant flooding, according to Mr Baker's investigations. Although somewhat surprisingly there is no "Flood management plan" or reference to the drainage/overland flood functions and associated risks in the Orphan School Creek DCP.

32 Notwithstanding this, there is a significant flooding matter to be addressed and I accept that development can be raised above the designated flood planning level, plus any appropriate freeboard, which identifies the acceptable level of risk the community is prepared to accept. However in this case, the scale of the development results in the displacement of low-lying flood storage area by the proposed construction of a substantial 2 - 3 storey wall immediately adjoining the Orphans School Creek pathway. In my opinion, this does not reasonably satisfy the DCP requirements to ensure that the built edge of development to the open space provides a sense of public space. Instead, it appears to me that the relatively high building walls for the non-complying development provides an undesirable "compound effect" that displaces flood storage area.

33 Another issue concerns the access to the basement carpark, which necessitates noticeable alterations and reconstruction of Foss Street to facilitate "flood free" access to the basement carpark. Whilst this reverse crossfall on the road is workable, nevertheless it is an undesirable element in terms of public interest, visual impact and safety considerations, which is unlikely to be required in a complying development.

34 Insofar as other issues were identified, including contamination and remediation of the site, I am satisfied from the evidence they could be covered by conditions of consent for an appropriate development. Court orders 1. The appeal is dismissed. 2. The SEPP 1 objection to cl 19(2) development standard for FSR in the Leichhardt LEP is disallowed. 3. Development consent for D/2003/675 for dwellings at Lot K and I (No. 43) Foss Street, Forest Lodge, is refused. 4. The exhibits may be returned except for 2, 3, 4, 5, A, G, O, P and Q.

                      R Hussey
                      Commissioner of the Court
                      rjs

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.