Lin v Council of the City of Sydney

Lin v Council of the City of Sydney - [2014] NSWLEC 1029 - NSWLEC 2014 case summary — Zoe

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Relevant planning controls 9The site is within Zone B4 Mixes Use under Sydney Local Environmental Plan 2012 (LEP 2012), which was gazetted on 14 December 2012. The proposed development is permissible in this zone. The objectives of the B4 zone are: · To provide a mixture of compatible land uses. · To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. · To ensure uses support the viability of centres. 10Clause 2.3(2) provides that: (2) 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. 11Clause 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 maximum height shown on the Height of Buildings Map is 6m for 13 Briggs Street and 9m for Briggs Street. Even though the proposal exceeds these heights, a written request in accordance with cl 4.6(3) is not required because of the provisions of cl 1.8A. 12Clause 4.4(2) provides that the "floor space ratio of a building on any land is not to exceed the maximum floor space ratio shown for the land on the Floor Space Ratio Map". The maximum floor space ratio (FSR) shown on the Floor Space Ratio Map is 1.25:1m for 13 and 15 Briggs Street. The proposal satisfies this standard. 13Clause 6.2.1 provides that regard must had to the matters in cl 6.2.1(4) in regard to design excellence. 14The buildings are identified individually in Sc 5 as heritage items of Local significance (Items I41 and I42 - "Terrace house") and as such cl 5.10 Heritage conservation applies. Clause 5.10(4) states: (4) Effect of proposed development on heritage significanceThe consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). 15Sydney Development Control Plan 2012 (DCP 2012) applies to the site. DCP 2012 came into effect on 14 December 2012. 16As the development was lodged with the council on 4 December 2012. and the application had not been finally determined before the commencement of LEP 2012, the application falls within the provisions of cl 1.8A that states: 1.8A Savings provision relating to development applications (1) If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced. 17The environmental planning instrument that applied to the site prior to LEP 2012 was South Sydney Local Environmental Plan 1998 (LEP 1998). Under LEP 1998 the site was within Zone No 10-the Mixed Uses Zone. The proposed development was permissible in this zone. Clause 10 provides that consent must not be granted unless the proposal is consistent with the objectives of the zone. The objectives of this zone are: (a) to allow, in appropriate circumstances, a mixture of compatible land uses such a residential, retail, commercial, light-industrial and industrial development, and (b) to promote mixed use planning by locating mutually supportive and compatible uses such as residential uses, places of employment and retail uses in close proximity to each other so as to minimise vehicular travel, and (c) to permit appropriate forms of residential development within the zone to mutually support the vitality of nearby commercial and urban village centres, and in doing so, assist successful urban consolidation, and (d) to incorporate contemporary urban design principles in the design of new buildings and the interpretation of their relationship with the public domain, and (e) to implement the principles of energy efficiency, travel demand management and other sustainable development practices as part of the development assessment process, and (f) to encourage the integration of suitable employment and resident intensive activities into accessible locations so as to maximise public transport patronage and encourage travel by foot and bicycle from surrounding areas, and (g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and (h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area. 18Clause 28 provides requirements for Built design principles and masterplans. 19South Sydney Development Control Plan 1997 (DCP 1997) applied at the time of LEP 1998. Part E, cl 2.2 Floor space ratio provides that "The FSR does not exceed the maximum FSR in the FSR Map of this DCP". The maximum FSR is 1.5:1 for each lot. 20 Part E, cl 2.3 Height and scale provides that "Building height is no greater than the height specified in the Height Control Map not including an Attic as defined in this Development Control Plan". The height is 9m for each lot, excluding a potential attic area in the roof space above the 9m height. 21Sydney Heritage Development Control Plan 2006 (DCP 2006) provided heritage requirements.

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The weight to be given to the planning controls 22The weight to be attributed to a draft environmental planning instrument (or LEP 2012, in this case) will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower, Spigelman CJ states at pars 6 and 7 that: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. 23In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]): Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve. 24His Honour further stated (at par [35]): ...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected. 36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application. 25The questions to be answered are firstly, is the draft LEP imminent and certain and what weight should the draft LEP be given in the consideration of the application and secondly, whether the proposed development will preserve the character anticipated by the B4 zone and whether the proposed development will undermine the objectives of this zone. 26First, on the question immanency and certainty, the draft LEP must be imminent and certain given that it has been gazetted and is currently in force. It must be given some weight in the assessment of the application. 27On the second question, it is necessary to look at the aims and objectives of the draft LEP and then see whether the proposed development undermines the relevant aims and objectives, in a substantial way. In this case, the proposed use is permissible under both the draft LEP and the LEP 1998. The different planning instruments contemplate a similar form of development although the specific controls vary. In this case, it could not be said that the proposed development undermines the relevant aims and objectives of the draft LEP, in a substantial way, so the principal environmental planning instrument for the assessment of the development application is LEP 1998. 28In coming to this conclusion, a problem arises in relation to the status of DCP 1997. Dr Berveling submits that DCP 1997 was repealed with the coming into effect of DCP 2012 and as such the Court should have no regard to any of its provisions. While there can be no dispute that DCP 1997 has been repealed, it is virtually impossible to give full regard to the provisions in LEP 1998 without some reference to DCP 1997 as contrary to LEP 2012, the development controls that effectively guide the form of development available in LEP 1998, such as height and FSR, are contained in DCP 1997. For this reason, it is necessary to make some reference to DCP 1997.

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Height 29Expert evidence for the council was provided by Mr Matthew Girvan, a town planner and Mr Andrea Urzi, an urban designer and Mr Anthony Betros, a town planner provided evidence for the applicant. 30Height was a major contention in the proceedings. It related to the potential heritage impact from Briggs Street and was also a consistent concern from the residents in the residential flat buildings that overlook the site at the rear however it was agreed that the proposed addition satisfies the height requirement in DCP 1997. 31Even though the councils Statement of Facts and Contentions identified LEP 1998 as part of the contentions, Mr Girvans evidence focused almost exclusively on LEP 2012 . He considers that LEP 2012 should be given determinative weight because it reflects the desired future character of the area. In other circumstances, Mr Girvan may be correct however for the reasons explained earlier in the judgment, LEP 1998 is the principal document for the assessment of the application. To do otherwise means that cl 1.8A would have little or no work to do. I understand Mr Girvans concerns on overshadowing impacts were addressed during the hearing by more detailed and a quantifiable assessment of the shadows cast by the proposed building. 32As explained to the Court, the different maximum height requirements in LEP 2012, at 6m for 13 Briggs Street and 9m for Briggs Street, were formulated to reflect the single and two-storey form of the existing heritage dwellings on the respective properties. They are, in essence, height limitations that reflect the form of the existing heritage buildings and not necessarily generic height controls. The impact of the development on the heritage significance of the two buildings is addressed later in the judgment and was found to be acceptable. 33Given that the proposed building does not breach the height requirement in DCP 1997 and that the height does not unacceptably impact on the heritage significance of the two buildings, the height of the proposal is not a reason to refuse the application.

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Rear setback 34Mr Girvan and Mr Urzi note that the first and second floor setback do not align with the neighbouring developments at 3-11 Briggs Street or the dwelling at 17 Briggs Street. The rear setback does not minimise the bulk of the building when viewed from the neighbouring apartments and their rear courtyards or balconies. Additionally, the proposal does not achieve a building separation of 12 m between buildings in accordance with the Residential Flat Design Code. Reliance on vegetation to mitigate the impacts is not considered to be acceptable as the extent of vegetation changes over time but the structures are permanent. 35Mr Betros maintains that the rear setback is acceptable as the development at 3 - 11 Briggs street does not have an aspect towards the proposed development and is screened to the rear by the trees. Tree screening along the eastern side and additional planting also reduces the visual impact of the proposal from the rear of terraces to the east. The rear setback is consistent with the neighbouring flat buildings to the rear albeit being significantly lower. 36The provision of the additional floor space behind the heritage items has been provided in a sympathetic manner and represents an appropriate siting, noting that the proposed FSR and height are below that permitted by DCP 1997. The rear elevation does not contain any windows capable of creating any privacy impacts, which, along with the retention of trees at the rear, confirms that the rear setback is reasonable in the circumstances. 37Overall, the proposal is considered to strike an appropriate balance in providing for reasonable development opportunity whilst maintaining the integrity of the heritage items on and adjacent to the site. Findings 38Part E, cl 2.4 of DCP 1997 addresses setbacks, including rear setbacks. The clause relevantly states: Side and rear setbacks are required to: + provide adequate separation between buildings; + protect adjoining buildings from overlooking, overshadowing and general loss of amenity; + protect sunlight and daylight to habitable rooms; + protect and optimise useable semi-private and public open space; and + provide a landscaped visual setting for the building. 39The relevant control in DCP 1997 states: Rear setbacks Buildings conform to the rear building setback of adjoining buildings at ground and upper levels. 40Clause 4.2.2.1(3) of DCP 2012 has a similar requirement that states: 3) The rear setback and alignment is to be consistent with adjoining buildings. When the setback or alignment varies, either the adjacent or average rear setback or alignment is to be adopted. 41In this case, I am satisfied that the rear setback conforms or is consistent with adjoining buildings. The proposed building has a similar setback to the furthest edge of the building to the south at 3-11 Briggs Street although parts of this building are set back a further 2.5 m. The buildings to the rear with a frontage to Dunblane Street have a similar minimum setback although not for all parts of the buildings. Consistency does not necessarily mean the same but "capable of existing together in harmony" (Project Venture Developments v Pittwater Council [2005] NSWLEC 191). 42As the dwelling to the east at 17 Briggs Street remains largely intact and has not been redeveloped like the other properties surrounding the site, it is unreasonable to adopt the rear setback of this property in the consideration of an appropriate rear setback for the site. Similarly, It is unreasonable to seek compliance with the Residential Flat Design Code because of the infill nature of the development and the need to take into consideration the limited site area, the form and setbacks of existing developments and the heritage significance of the items on the site. 43A positive aspect of the proposal is that the proposed building does not extend for the full width of the site, unlike the building to the west and the buildings to the rear. This allows a setback of around 3.5m to be provided to both adjoining properties to the east and west thereby creating a setting that is not enjoyed by other nearby residential development. 44Overall, I am satisfied that the rear setback is acceptable as the setback raises no issues with solar access, overlooking or other general amenity matters. The setback is commensurate with other forms of higher residential development in the area and allows the retention of the significant trees along the rear boundary to maintain the existing landscaped corridor.

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Heritage impacts The evidence 45Expert evidence for the council was provided by Mr John Poulton and Mr Robert Staas for the applicant. The remaining heritage contention relates to the visual impact of the proposed development on the heritage significance of the heritage items when viewed from Briggs Street. 46Mr Poulton states that the site is part of a row of fairly consistent one and two storey Victorian dwellings that extend from 13 to 35 Briggs Street. There are no large rear buildings immediately behind the heritage items within the row. Even with the fairly recent works at 21 and 23 Briggs Street, the additions have maintained the overall Victorian character of the facade and are not visible from the street. 47The new three level building at the rear of the site will be substantially taller than the single storey cottage at 13 Briggs Street and more bulkier than the terrace at 15 Briggs Street. As such it does not respect the typical built form hierarchy of Victorian houses that rear wings and structures be subservient to the main dwellings. The new building also does not maintain the setting of the heritage items on the site including the relationship between the items and the adjoining heritage items within the street. The mansard type roof of the new building will not be in keeping of the character of the row of heritage items. 48Overall, the height does not respect the predominant one and two storey scale of the existing buildings on the site and those within the row of heritage items from 13 -35 Briggs Street. 49Mr Staas comes to the opposite conclusion. He states that the context of the site is highly compromised by surrounding residential and industrial development, such that there is little consistency of scale or character in the immediate setting of the items. The residential development to the immediate west makes no reference to the character of the heritage items. The residential developments, which form a tall wall of buildings along the rear boundary dominate the rear of the heritage items and are visible from Briggs Street in the gaps between them. 50The new addition will not have high visibility to the public domain except from the car park opposite, which is likely to be redeveloped in the future. The scale is transitional in relation to the surrounding developments and does not affect the established character of the wider group, which includes the two modified terraces at 19 - 21 Briggs Street, which have been recently altered with council approval. The new work, being located to the rear of the heritage items does not disrupt the relationship between the various components of the streetscape when viewed from the public domain where they have their principal impact. The mansard detail of the roof is recessive in physical character and materials and is acceptable in terms of its limited visibility from the street. 51The trees to be retained will continue to provide an appropriate backdrop to the items visually separating them from the dominant developments located to the side and rear. Findings 52Mr Poulton states that the heritage provisions in LEP 1998 and LEP 2012 are very similar, as are those in DCP 2006 and DCP 2012 where an assessment is required to determine extent to which the carrying out of the proposed development would affect the heritage significance of the heritage items. 53With the amendments to the plans, the sole remaining heritage contention related to the appearance of the building containing the 6 apartments at the rear of the site when viewed from Briggs Street in the context of the heritage items in this street. Montagues were provided, and were accepted by Mr Poulton and Mr Staas as accurately reflecting the new building at the rear when viewed from Briggs Street. An inspection of the site was also carried out from Briggs Street and an assessment made of the relationship between the existing buildings and the new building using the montages. 54With this understanding, I agree with the conclusions of Mr Staas. Even if the assessment ignores the diverse character of Briggs Street in the vicinity of the site, that includes industrial and contemporary residential developments, and reliance is placed on the isolated group of terrace houses, the proposal does not unacceptably affect the heritage significance of the heritage items. 55The new building is not overly visible from Briggs Street and where it is visible, the more contemporary design, including the mansard roof, clearly distinguishes the new building from the heritage items. The physical separation of the new building from the heritage items further accentuates this detachment when viewed from the street. Where the new building can be viewed from the street, the new building will also sit against the backdrop of the retained band of significant vegetation, further minimising its appearance from Briggs Street. 56For these reasons, I am satisfied that the carrying out of the proposed development would not affect the heritage significance of the heritage items.

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Private open space 57Part F, cl 2.1.1 of DCP 1997 addresses private and communal open space. The objectives are: + To ensure that private and communal open space for residential development is useable landscaped open space in the form of gardens, courtyards and roof top terraces. + To provide communal open space which facilitates social interaction, a sense of community and provides residents with space for active and passive recreational uses. + To ensure that private and communal open space is safe and secure for residents. + To provide in communal and private open space the opportunity for reinstating the natural environment, recycling and conservation of resources. 58The relevant controls are: Private and or communal open space is provided at ground level at the following rate per unit: 10 m2 for bedsit units; In addition to the open space requirement per unit type as indicated above, a private balcony or terrace with a minimum area of 8 sq.m and a minimum depth of 2.0 m is provided which is accessible from the living room of each residential unit. For conversions of existing warehouse buildings and the like which cover the whole site, open space may be provided:by generous internal courtyards or atria, gymnasiums and swimming pools; in the roof or in the form of balconies and terraces. 59Clause 4.2.3.8 of DCP 2012 provides requirements for private open space where the relevant requirements are: (1) Private open space may be in the form of courtyards, decks and balconies and is to be provided for at least 75% of dwellings in a development. (2) Private open space is to have a north west to north east aspect where practicable. (3) Private open space is to be directly accessible from the living area of the dwelling and capable of serving as an extension of the living area. . . (6) Private open space is to have the following minimum consolidated area and dimensions for all dwelling sizes within a development: (c) ground level dwellings: 25sqm with a minimum dimension of 4m; and (d) upper level units: 10sqm with a minimum dimension of 2m. (7) The minimum consolidated area of private open space will only be permitted above the ground level where: (a) location at ground level is not possible due to conditions of the site; (b) the proposed private open space will provide a similar level of amenity as a private open space at ground level; and (c) there will be no significant impact on surrounding properties in respect to the loss of privacy 60Mr Garvin maintains that the private open space for units 1 and 4 are inadequate. Unit 1 is the refurbished two storey terrace that has a verandah on each level fronting Briggs Street as its private open space. The dimensions are around 1.3m in width and a length of around 5m giving an area of 6.8 sqm on each level (or a total of 13.8 sqm). Unit 4 is the single storey cottage that also relies on the Briggs Street verandah for its private open space. The area of the verandah is around 1.3m in width and a length of around 6.7m giving an area of 8.7 sqm. 61Mr Betros sates that the north facing verandahs for units 1 and 4 provide outdoor dining and seating opportunities, in addition to the spacious internal living areas and as such, adequate private open space is provided. 62In considering the different views of Mr Garvin and Mr Betros, I am satisfied that the private open space for units 1 and 4 is acceptable, even if not optimal. Some consideration must be given to the fact that units 1 and 4 are the heritage items in the development. I agree with Mr Betros that the verandahs will still be available for private recreation although with reduced amenity due to the width and areas of these verandahs.

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Section 97B costs 69The respondent seeks costs pursuant to s97B of the Environmental Planning and Assessment Act 1979. This section states: 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application. (3) The regulations may provide for circumstances in which subsection (2) does not apply. (4) This section has effect despite the provisions of any other Act or law. 70The amendments relied upon by the respondent in their s97B claim are: + access to Unit 2 has been modified to provide internal site access between the unit and the communal letterboxes and waste area, + bicycle parking has been provided, + there is no reliance on the western pathway for access yet it is maintained as an alternative access, + the rear elevation has been amended to provide consistency between the floor plans and elevation, + the access stairs to the upper units have been amended to be at the rear of the eastern heritage item at 15 Briggs Street, + the depth of the 1st floor balconies servicing Units 5 and 6 have been increased from 0.9m to 1.5m, + units 1 and 4 have been amended from a 2-bedroom dwelling to a 1 bed + study, + units 5,6,7 and 8 have been amended from 1-bedroom units to studios, + a dividing fence between the rear private open space areas has been provided, and + unit 3has been amended to be adaptable 71Orders for the payment of costs, in accordance with s 97B(2), must be made if the amendments are not "minor". In Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153, Pepper J provided some guidance on whether amendments can be regarded as "minor" where Her Honour states (at 42): 42. A review of Cachia and the two Groeneveld decisions reveal the following principles that may, at a minimum, assist in determining whether the amendments are "minor" for the purpose of s 97B of the EPAA: (a) first, the question of what is 'minor' is one of fact and degree [Cachia at [25] and the first Groeneveld at [14]); (b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development [Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]); (c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]); (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]); (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]); (f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and (h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]). 72If the amendments are considered in light of the principles in Futurespace, I am satisfied that they are minor. The most significant of the changes involves the amendment to the access for unit 2. This amendment (and even if combined with the other amendments) does not change the cumulative or overall effect in the context and location of the proposed development (Principle (b)) or require a significant re-assessment of the development application (Principle(c)). 73For these reasons, an order for costs under s97B is not justified.

At a glance

Court

Decision date

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Judgment (12 paragraphs)

Parties

Cases Cited (3)

Cited By (1)