Lateral Corporation Pty Limited v City of Sydney Council [2010] NSWLEC 1224 | Case summary

JUDGMENT 1 SENIOR COMMISSIONER: 66 and 68 Riley Street, Darlinghurst (the site) has an area of a little over 407 square metres. It has a frontage to Crown Lane at its rear and a frontage to Riley Street as its principal street frontage- those frontages being to the east and to the west respectively. 2 The site is zoned 10, Mixed Uses, under the South Sydney Local Environmental Plan 1998 (the plan). The plan is now administered by the Council of the City of Sydney following the amalgamation of a portion of the South City Municipality with the City. 3 As part of the planning controls in the relevant Development Control Plan, the objective is set for sites (of this mixed use nature) that they will have. as part of the development, 25% that will be for a commercial use or 25% of the floor space of the proposal, whichever is the maximum, with residential uses above. 4 The present proposal seeks to have a retail tenancy at the ground level with three car parking spaces, including loading facilities and basement level for parking of bicycles and for amenities. The remainder of the development is proposed to be of a residential configuration, primarily of smaller apartments. These are intended to be owner occupied. 5 The evidence that is put before us in these proceedings is based on what appears to be the broad agreement between the applicant's consultant planner, Mr Betros, and the respondent's consultant planner, Mr Smith, that the overall building envelope that is proposed is acceptable and meets the requirements of the council for infill development (being consistent with its streetscape to Riley Street and its presentation to Riley Street). 6 Although the proposed floor space ratio is significantly in breach of the formal requirements contained in the Development Control Plan, it is not suggested, as part of the expert planning evidence, that that non-compliance, in itself, provides any basis for refusal. The refusal is, on the evidence of Mr Smith, proposed because of what he says is the unsatisfactory internal amenity of the proposed apartments - particularly with respect to ventilation and solar access to them. 7 The controls that are contained in the Development Control Plan for solar access for these apartments are quite clearly breached, as we have been shown by Ms Carpenter, counsel for the council, who has taken us to the relevant areas. 8 The evidence of Mr Smith was that, if he were to postulate what would be an appropriate mixed use development for the site, it would involve, in effect, the severing of the eastern portion of the proposed building -there being proposed to be apartments facing to the east and to the west on a number of the levels. Severing the building in that fashion would necessarily create, on his evidence, a space fronting Crown Lane of approximately half of the site - an area, that he said, could be used as open space for the development and that could be landscaped. 9 At the present time, the site is vacant and growing on Crown Lane is a modestly flourishing rubber tree. The space that would be created, if Mr Smith's version of the development were to be approved, would, in our view, lead to an unsatisfactorily little utilised (and little able to be thrivingly landscaped) open space. There is, in our opinion, a tension imported by the requirements for infill development of this site of a type of mixed use development nature, permitted by the uses set out in the land use table to the Local Environmental Plan and the provisions of the Development Control Plan. 10 In addition, there is an internal tension within the Development Control Plan about some of the amenity issues to which the planners have taken us, together with the proportionality set by the Development Control Plan for the mixed use elements of such a proposal. 11 The Court of Appeal tells us, in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373, what regard we should have to a Development Control Plan and its relationship with the Local Environmental Plan. It is our view that the principal linkage between the two is the consistency between the objectives in the LEP for a mixed use development and the nature of the ratio, within such a mixed use development, that is set by the Development Control Plan. It is in considering that, that is the conformity between the LEP, the DCP's ratios for the elements of the mixed use development and this proposed development's compliance with those ratios, that we turn then to assess whether or not the level of the amenity afforded to these apartments renders the proposed development for this site acceptable. 12 The constraints that are set by this site, necessarily, arise from both the context of its east/west orientation and its context with surrounding development. 13 We have been taken to the various elements that are contained in the proposal and their compliance or otherwise with the solar amenity provisions contained in the Development Control Plan. We have also been taken to the rules of thumb set out in the Residential Flat Design Code for solar and light access that are, in themselves, more permissive than those that are contained in the Development Control Plan. 14 We observe, in this regard, that, although we have been provided with shadow diagrams both by the council and by the applicant in these proceedings, there are reasons for us to consider that each of those sets of shadow diagrams might be defective and we have not relied, in significant detail, on taking either of those sets of shadow diagrams as being entirely accurate or providing anything other than general guidance to us in our consideration of this application. 15 In order to provide an appropriate solar amenity to the apartments to the extent that it can be obtained, the applicant now proposes a balcony treatment that is a variation to that which is contained in the application. 16 That balcony treatment would have the dividing walls between the balconies - the present masonry walls - replaced with translucent glass material. They would also propose that, instead of the operative external arrangement to control the access of sun and traffic noise to those balcony areas, there would be operatable multi-folding framed glass panels above glass balustrades. 17 There are two matters that arise with respect to considering whether that will assist to raise the level of the amenity in the proposed apartments. The first is whether or not those opening and closing framed glass panels would cause an additional area to be added to the floor space ratio of the building - thus increasing the non-compliance with the floor space ratio control. 18 We have considered this and we have concluded that it is possible that they will so add and we have also concluded that, if they do so and they add to the non-compliance, they do not add to that non-compliance in an unacceptable fashion. 19 We have reached that conclusion because, even if the glass elements were to be closed, they would simply be creating an acceptable and consistent presentation to either the eastern or the western streetscape. They would, in addition (because of what is described as their winter garden effect), be increasing the internal amenity of the relevant apartments. As a consequence, the absence of a detrimental exterior presentation, coupled with the improvement in amenity and the fact that the presentation and the streetscape would be consistent with what is desired for infill development on such a site, renders them an acceptable visual design element. 20 We have also considered the question of the fact that, if those screens were to be installed as proposed by the applicant in its alternative conditions of consent proposed by Mr Betros, we would have an area that if the glass were closed and the internal doors were closed, there would be a lack of ventilation to the internal areas. 21 Firstly, we have concluded that it is unlikely that those glass panels would be permanently closed. We are of the view that it is reasonable to assume, even given the orientation of the building, that, during the summer months, it is likely they will be open for part of the day and, indeed, it is likely they will also be opened for part of the evening. 22 Even if they were left open through the totality of the night during summer times, when it might be appropriate for that to occur, acoustic shielding by the use of drapes would be possible within the premises - even if the glass panels and the doors to the balcony were open. We are satisfied that, at least at those times, it would be possible that there would be a sufficient degree of ventilation available in the internal areas for that to be acceptable. 23 As to ventilation at times of the year when it would be appropriate for those to be closed, the applicant proposes an additional condition concerning alternative ventilation systems that we consider is appropriate to adopt. 24 Whilst Ms Carpenter has made submissions to us that that proposed condition is not consistent with energy efficient development and ought be resisted on broader environmental grounds, we are satisfied that, in an area of the city as densely populated as is the locality where this proposed building is located, mechanical ventilation or alternative ventilation is an appropriate and acceptable design outcome. 25 The primary area where there is a difference between the parties arises with respect to solar and light impact. The rules of thumb contained in the Residential Flat Design Code provide that, for living rooms and private open spaces, at least seventy per cent of apartments in a development should receive a minimum of three hours of direct sunlight between 9am and 3pm in mid winter. In dense urban areas a minimum of two hours may be acceptable. 26 There is no doubt that this is a dense urban area. There is also no doubt that the nature of the development orientation and surrounding development, no matter which version of the shadow diagrams to which we have regard, will limit the solar access. 27 However, we accept Mr Betros's calculations (that are contained in his Supplementary Statement of Evidence) concerning the apartments at the Riley Street frontage. These calculations areundertaken on the basis of masonry dividing walls between the balconies. We accept that they will be modestly, but only modestly, enhanced by the glazed alternative and that 100% of apartments will receive two hours sun to the balcony between midday and 3pm. 28 Whilst not all of that sunlight will necessarily be at ground level (and indeed some of it may be fleeting), we are satisfied that, nonetheless, because of the location and orientation of the building, the best has been done within what are the reasonable development constraints of the site to provide adequate solar access at the Riley Street frontage. 29 Similarly, with respect to Crown Lane, although there will be some apartments (primarily the two at the lowest level) that will achieve inadequate sunlight, we accept Mr Betros's calculations that sixty per cent will receive two hours sunlight between 8.45am and 12 midday. His calculation is that sixteen of the apartments will satisfy those criteria giving a total of eighty per cent of the apartments overall and that, although there is modest improvement by the incorporation of the glazed walls between the balconies, the percentage will remain the same. 30 We note in the council's bundle of documents, in the Statement of Environmental Effects, that, at Appendix 1, there is a market demand analysis prepared by CB Richard Ellis Property Consultants that make it clear that there is a significant demand for apartments of this nature at this location - apartments that, by their nature, are consistent with the council's objectives for apartments where they are located close to public transport, other public amenities and the like and where people can walk or travel by public transport to their places of employment. 31 We are satisfied overall, first, that Mr Smith's alternative model for the site would be inappropriate. In our view, in addition to providing space at the Crown Lane frontage that would be inappropriate, such a development would not reflect the objectives of the Environmental Planning and Assessment Act 1979 for the orderly economic development of land. 32 Second, on the matters of outlook from the apartments at the lower levels at Crown Lane, they will have some modest degree of view to sky and stars, but will have a view of a brick wall on the other side of the laneway that will be modestly ugly, (possibly putting it at its highest) but, in the context of the overall development, this is not such as to warrant refusal. 33 With respect to Crown Lane and the buildings to the east of Crown Lane with frontages to Crown Street, it is our view that the approval of this proposal may well create circumstances that will influence what might be approvable on those sites if they were to be redeveloped, particularly the City Gymnasium site. However, that is a necessary consequence of any subsequent redevelopment having to take account of approved development on neighbouring sites or properties otherwise in the vicinity. 34 We do not consider that there is any issue of precedent involved because this property (and the proposed development for it) takes its cues from its surroundings in Riley Street and any redevelopment that might be postulated for Crown Street will necessarily take its cues from other development in Crown Street and not from this site. 35 It is our responsibility, in these proceedings, to determine whether or not the proposal is acceptable, not whether or not it achieves design nirvana. 36 We have concluded that the proposal is acceptableand that, with the adoption of the proposed conditions 2 and 4 of the applicant's proposed conditions, the proposal is worthy of development consent. 37 We turn, briefly to, to deal with conditions 1 and 3 of the applicant's proposed conditions. The first of them proposes a roof garden open space. It is not relied on by the applicant, through Ms Duggan, the applicant's counsel, as being a necessary addition to the proposal to provide satisfactory amenity to the residents. It is resisted by the council on the basis there may become pressures for structures at that level. We are satisfied that, as the applicant does not really want it and the council certainly does not want it,there is no basis why we should require it, particularly given that it comes towards the end of the proposal, and with respect to the Mr Betros, possibly as an after thought to it. 38 With respect to the applicant's proposed conditions concerning stormwater detention tanks; we think that is better left to the principal condition contained in the council's condition rather than us adopting Mr Betros's attempts as an engineer to design a stormwater detention tank and water reuse area and our attempts to become amateur engineers as a lawyer and a planner in assessing it. 39 The consequence of all of that is that: 1. The appeal is upheld; 2. Development Application D/2009/1350 for the construction of a five storey mixed use building on 66 to 68 Riley Street, Darlinghurst, will be granted development consent subject to conditions that will be annexed to the orders; and 3. The exhibits, other than exhibits A, B, E, 2 and 3, are returned.

Lateral Corporation Pty Limited v City of Sydney Council

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