Lachlan Project Management v Sydney City Council

Lachlan Project Management v Sydney City Council - [2006] NSWLEC 28 - NSWLEC 2006 case summary — Zoe

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JUDGMENT Background 1 This appeal was lodged against conditions of consent imposed on a development application for the redevelopment of an existing serviced apartment building (The Grantham), at 1 Grantham Street, Potts Point. The proposal involves a change of use for this existing building from 40 serviced apartments to a residential flat building, and the refurbishment of the building with both internal and external alterations to form 8 residential units, i.e. 1 unit per floor. They comprise 7 x 3 bedroom units and 1 x 2 bedroom (penthouse) unit. 2 The proposal requires the removal of the entire facade of the building but the retention of existing the floor plates. It includes removal of existing precast pebble-crete panels, aluminium framed windows, external wall mounted air-conditioning units and existing north facing balconies. 3 The building is proposed to be widened by the inclusion of new balconies on the northern and southern elevations. The existing balconies on the western elevation (overlooking the city and Woolloomooloo) are proposed to be widened within their southern corner from 1.5 m to 3.0 m. 4 It is proposed to widen the basement and ground level footprint of the building, within the south-eastern corner to provide a total of 18 carparking spaces, i.e. an additional 4 carparking spaces over the 14 existing car spaces for the serviced apartments. 5 The neighbouring building to the north 'Stanford Hall', is an older style residential flat building, which has various bedrooms, living rooms and kitchens adjacent to the proposal's northern elevation. 6 After consideration of the proposal, council granted deferred commencement consent, which required design amendments to the building. Consequently, this appeal is against the following deferred commencement conditions: 1. The northern balconies on levels 3 - 9 of the building are to be deleted from the plans and consequential amendments are to be made to the design of the northern elevation. The redesign of the northern elevation is to promote adequate levels of privacy between the subject building and 'Stanford Hall'. The revised elevation is not to result in a blank wall and is to be well articulated and may include privacy screens. 2. A minimum of 4 parking spaces are to be removed from the upper level carpark and one space will be provided for use by persons with a disability. These amendments will result in a maximum of 14 car spaces (including one space for disabled persons) being provided. 3. The northern boundary wall of the enclosed carpark is to be redesigned or setback on the boundary to ensure adequate outlooks and views from ground level units within the adjoining lightwell of ' Stanford Hall', subject to the allowances of the Dividing Fences Act. 4. The communal open space located on the rooftop of the carpark and adjoining the northern boundary is to be deleted. This is to be replaced with lower-level landscaping that provides visual separation and privacy between 'The Grantham' and 'Stanford Hall'. 7 However, after further conferencing between the parties, agreement was reached on the aforementioned Conditions 3 and 4, by way of revised plans, which lowered the communal open space area and provided acceptable lower-height planting, which minimised view loss from units in the adjoining building.

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8 Accordingly, the remaining issues at the appeal concern: i) the removal of the proposed balconies on the northern side of the proposal, so as to minimise view loss from the units in 'Stanford Hall' and also disamenity in terms of overlooking, privacy and noise intrusion. ii) the removal of the proposed 4 additional carparking spaces, in order to comply with council's control, which restricts parking spaces in this area. Planning controls 9 In this matter the following controls apply: 1. State Environmental Planning Policy No. 65 -Design Quality of Residential Flat Development, 2. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2004, 3. South Sydney Local Environmental Plan 1998, 4. South Sydney Development Control Plan (Urban Design) 1997, 5. South Sydney (Heritage Conservation) Development Control Plan 1998, 6. South Sydney Development Control Plan No. 11 Transport Guidelines for Development 1996, 7. City of Sydney Access Development Control Plan 2004, 8. Building Code of Australia. The evidence 10 Detailed evidence on behalf of council was presented by Ms S. McMahon, senior council planner. She included extracts from relevant planning controls in her statement, which shows the site is within the 2(b) (Medium Density) Residential zoning, where an FSR of 1.5:1 applies, together with height limit of 12m. From her assessment, she raises no planning issues regarding the concept of converting serviced apartments to the reduced number of 8 residential units, apart from the identified issues. 11 Also, a number of objections were made by the residents of the neighbouring properties about loss of views, privacy, overlooking and inadequate road space/parking. 12 For the applicant, evidence was presented by Mr A. Darroch, consulting town planner and Mr G. Pindar, traffic consultant. 13 The first issue relating to the provision of the additional 4 carparking spaces arises because this exceeds the provisions contained in DCP No. 11. The relevant objectives of these transport guidelines are: - to encourage a reduction in the level of vehicular travel in South Sydney by reducing parking requirements and improving facilities for pedestrians, cyclists and public transport users; - to ensure that an acceptable level of parking is provided on-site to minimise the unreasonable overflow of parking on surrounding streets. 14 Accordingly, the DCP allows the following rates for carparking:

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20 This position is consistent with that of Mr Pindar, who has assessed the proposal on the basis of the prevailing controls and its locational context. He too relies on the statements in DCP 11 that some flexibility is allowed and that these provisions are subject to periodical review. Accordingly he supports the additional 4 car spaces, allowing each of these large units 2 car spaces for the following reasons: · the development is targeted at the high end of the market, with large units and very high prices which attract residents with a high car ownership rate and consequent need for additional parking. This style of development had not evolved when the DCP was prepared in 1993 and would not therefore have been contemplated by the DCP; · in this regard, the DCP embodies 'generic' parking rates that apply to any development within the entire South Sydney LGA, which has a great diversity of housing types within areas and also have different characteristics. This reinforces the need for a flexible approach to the application of the 'nominal' DCP rates under the DCP and this flexibility is in fact invited by the DCP; · the provision of an additional 3 resident parking spaces (above the approved level) would not undermine council policy which is aimed at reducing car usage or set a precedent because the vast majority of development sites would not be conducive to ' high-end' developments of this type; · the additional parking sought will not result in additional car trips at times that are of concern to planners, being the on-street morning and afternoon peak periods, where capacity constraints and conditions create concerns. These relate principally to ' journey to work' trips where the future residents will leave the car garaged at home and will use the available peak hour public transport service in the locality which in most cases will be more convenient. Therefore it is essential that sufficient on-site parking be provided for these cars which otherwise would be parked on street; · there are numerous other trips that are not conducive to public transport use and the nature and scope of these is continuing to grow in line with current travel trends. These include recreational, shopping, educational and social trips which in many cases occur during the evening and on weekends, where public transport services are downgraded or may not be available. In these circumstances, public transport does not provide a suitable alternative to private car use. The reliance on a private car for these trips is often the most convenient and safest mode of travel and penalising residents by not allowing parking for the these trips is in my view an unnecessary and unreasonable limitation of the residents … 21 In determining these disparate positions, I have also considered the submissions regarding the appeal by Jaguar Investments Pty Ltd v City of Sydney NSWLEC 337, on a nearby site in Potts Point, where Commissioner Tour found that: 43. The rates proposed in DCP 11 are not justified by traffic studies and Council has resolved that the DCP is an interim document that is to be reviewed. Nonetheless the document must be the focal point for the consideration of the merit of the application. In varying parking rates the objectives of the DCP are to be met.

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34 In this context, reference is also made to provisions of South Sydney DCP 1998 - Clause 2.4 Amenity, which deals with separation distances and provides that: Despite the above, direct views between living area windows of dwellings are to be screened, obscured or offset to ensure maximum privacy. Balconies in any wall plane are not permitted within 6.0 metres of any other directly facing wall plan that does not have windows or balconies, or within 12.0 metres of any other directly facing wall plane with windows or balconies. 35 Accordingly, as the proposal does not comply with the separation distances, she considers these northern balconies should be deleted. 36 In further support of this conclusion, she relies on the application of the planning principles for assessing impact on neighbouring properties stated in Pafburn v North Sydney Council [2005] NSWLEC 444 for her following assessment: .. the proposed northern elevation balconies fail to comply with planning controls pertaining to separation distances and encroach upon privacy levels and view corridors. As previously discussed the northern balconies are not required in order to ensure sufficient area of private open space. This can be achieved through the provision of proposed balconies on the southern and western balconies. The removal of these balconies will not impact upon the defined floorspace area of the proposal and is considered to be a reasonable response to ensure the provision of adequate amenity. It is considered that the northern balconies should be deleted as there are sufficient balcony areas on other elevations and the removal would minimise amenity impacts including view losses and privacy upon the adjoining building. 37 Ms Mcmahon also assessed the application in terms of the planning principles stated in Super Studio v Waverley Council [2004] NSWLEC 91, dealing with any reasonableness and necessity for a proposal. Because the proposal incorporates additional southern and widened western balconies, she considers they are sufficient to service the proposed large open plan apartments and it is therefore reasonable to delete the northern balconies.

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38 In determining this issue, I have also considered the details in Exhibit J, where the architect Alex Popov states: · the design approach for this development has been to bring the existing building back to its essential structural elements and replace the facade with an environmentally responsive façade; · the balconies on the northern and southern side of this development have taken their dimensions from the existing balconies on the northern side which are of sufficient width to provide required fire separation and shading to the adjacent windows. The balconies and horizontal spandrels on the northern and western elevations play a vital role in providing required shading to the windows in these elevations; · the new balconies are supported by slender columns which provide a fixing point for balustrades, louvres and privacy screens. These devices form the architectural expression of this development and so the placement of the columns and width of balconies is critical in the overall aesthetic; · the balconies on the northern and southern facades have been purposely made the same width when viewed from the west. When viewed from the west, it is important that the balconies are the same width to maintain the rhythm of elements which provides the architectural expression. If the northern balcony were to be made narrower than the southern, the western elevation would appear ' lop-sided'… 39 Having considered these competing positions, in terms of the evidence and observations on the view, I am satisfied firstly, that the proposed transparent balconies will not cause unreasonable loss of views from units on the adjoining property. 40 I also accept the evidence that the proposed redesign of the exterior of this existing building is of a high order, of which the balconies are a significant contributing element. As the views of the front (western) elevation are critical from the public domain, I also accept that the desired aesthetics are achieved by the inclusion of the co-ordinated and balanced side balconies. In my assessment, the aesthetics of the building will be severely compromised by deletion of the northern balconies as suggested by Ms McMahon. 41 On balance, I give greater weight to the necessity to retain the restricted northern balconies for aesthetic considerations, on the basis that the other western and southern balconies will provide the main outdoor activity areas. So that any restricted use of the northern balconies, is likely to cause minimal amenity impacts on the neighbouring properties. Therefore the intent the aforementioned planning principles addressed by Ms McMahon is reasonably achieved, subject to the restricted use of these northern balconies. Notwithstanding this, I acknowledge that the proposed 1.57 m balconies have some potential to increase privacy and aural disamenity. 42 But in the circumstances in this case, it seems reasonable to me that some allowances and balancing be undertaken in respect of likely amenity changes occurring due to the significant reduction in units in the overall development. Also, appropriate discretion exercised considering the previously established separation distances and relationship between these existing buildings, where the prescribed separation distances for new buildings cannot practically be achieved. At present there are 4 possible, separate occupancies on each floor, with a number of balconies and windows that face Stanford Hall with the potential to cause disamenity. In my assessment, the proposal significantly reduces opportunities for disamenity from the use of the limited northern balconies, considering the likely reduction in occupancy on each floor.

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Judgment (37 paragraphs)

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