Marana Developments v Botany Bay City Council

Marana Developments v Botany Bay City Council - [2010] NSWLEC 1237 - NSWLEC 2010 case summary — Zoe

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20 Development Control Plan No. 35 - Multi Unit Housing and Residential Flat Buildings August 2004 co-ordinates Council's broad land use and zoning functions. The aims and objectives of DCP 35 include: (a) To ensure high quality new multi unit housing and residential flat buildings in the city of Botany Bay; (b) To guide the implementation of the design quality principles in State Environmental Planning Policy No 65. Design Quality of Residential Flat Development; (c) To promote the principles of ecological sustainable development through energy efficient methods, stormwater management, waste reduction techniques, landscaping and crime prevention techniques; (d) To provide for a range of housing types and forms to accommodate diverse and changing population; (e) To protect the amenity of existing residents. 21 Section 2.7 of DCP 35 provides design principles for new multi-unit housing and residential flat development for Hillsdale (Precinct 7) as follows: (a) Building design and site layout of developments is to create an attractive and pleasant environment for future residents. (b) The design of building and site treatment are to improve upon and enhance the current character and atmosphere within the suburb. (c) New development must have a clear presentation to the street with the scale and height of buildings being sympathetic to the overall character of the surrounding area. 22 Section 2.7.4. provides design principles for refurbishment, alternations/additions and strata subdivision of existing Schedule 7 walk-up residential flat building development in Hillsdale (Precinct 7) and includes: (a) Alterations/additions are to create an attractive and pleasant environment for future residents (b) The design of alterations/additions and site treatment are to improve upon and enhance the current character and atmosphere of the suburb (d) Development bonuses in the form of height concessions and increased floor space ratios will be considered by Council in development scenarios that result in the revitalisation/redevelopment of existing residential flat buildings . 23 Further reference is made to Section 6 of the DCP which refers to refurbishment, alterations/additions and strata subdivision of existing residential flat building development within the Hillsdale and Eastlakes precincts. 24 Section 3.2 sets out the general design elements for building form and character for multi unit housing and residential flat buildings. The objective for floor space ratio is to ensure that new development results in an FSR that is compatible with the existing zoning and future character of the area. 25 Section 3.3.2 relates to apartment layout, sizes and mix and defines the objectives for multi unit housing developments and apartments in residential flat buildings as including: * To ensure that dwellings are efficient, have high standards of amenity for residents and satisfy environmental performance criteria, such as ventilation and access to natural light * To ensure residential development contains a mix of residential types (based on the number of bedrooms) to increase the potential for a balanced population. 26 Section 6 deals with alterations, additions and refurbishment of existing Schedule 7 walk up residential flat buildings including strata subdivisions of such buildings. The objectives provide: (a) To encourage the refurbishment of existing Schedule 7 walk-up residential flat buildings; (b) To improve the residential amenity of existing Schedule 7 walk up residential flat buildings; (c) To encourage the revitalisation of areas that are concentrated with Schedule 7 walk up residential flat buildings . 27 Section 6. provides a list of matters for the development of Schedule 7 walk up flats including: * C1. The alterations/additions/refurbishment to the exiting buildings are to be designed so that there is adequate provision for the intended occupants in terms of amenity - dwelling sizes, balcony sizes, open space provision, storage, landscaping, acoustic and visual privacy, safety and security, pedestrian access and circulation. * C5. Statement of Environmental Effects and plans to accompany Development Applications for alterations, additions and refurbishment to existing buildings, including the strata subdivision of the building, are to address compliance with the BCA. 28 Development Control Plan - Building Design and Construction 2002 applies to residential development in the Residential 2(b) zone. This DCP aims to provide detailed design controls to ensure that development responds to its context and achieves a high quality built environment. This contains provisions to ensure the adequacy of room sizes, apartment areas should be restricted to the following net areas: Studio apartments 60m 2 One bedroom 75 m 2 Two bedroom 100 m 2 Three bedroom 130 m 2 Four bedroom 160 m 2 29 Development Control Plan (DCP) 7 - Subdivision (version 2) 2006 has been prepared to provide development guidelines in relation to all applications for subdivision of land. The objectives of the DCP are to: * Promote a high standard of development within the City of Botany Bay; * To ensure that new Torrens Title residential apartments, created by subdivision, are of sufficient size and shape to accommodate development that is compatible with the quality of development Council seeks to encourage in the surrounding neighbourhood; * To ensure that any Strata subdivision, whether of a new or existing building, creates Strata Residential lots and Common Property lots of a size, standard and amenity that is compatible with Council's controls, policies or requirements, current for such developments at the time of lodgement of the Strata Subdivision application.

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30 The Subdivision DCP provides for in Zone 2(b) Residential B that "Council may grant consent to the Strata Subdivision of a multi unit residential building subject to the multi unit residential building complying with all of Council's relevant Development Control Plans, draft Development Control Plans, policies or requirements for such buildings of that type current at the time the Strata Subdivision application is made." Issues 31 The respondent provided a Statement of Contentions in the proceedings as follows: (a) The proposed development fails to satisfy the secondary objectives of the Residential 2(b) zoning i. The proposed development will limit the potential for high-quality residential development on the site and will also have a negative impact on the revitalisation and/or improvement of the area of Hillsdale. Strata subdivision of the existing building will artificially preserve a building which is obsolescent, does not meet contemporary accommodation standards. ii. The proposed development will also have an adverse impact on the residential amenity of the occupants by preserving a building which contains units which do not comply with current standards (e.g. appropriate unit sizes, unit mix, car parking, shared balconies, acoustic separation etc.). (b) The proposed development fails to satisfy the objectives of Clause 5(2) of Botany Bay Local Environmental Plan 1995 . i. The proposed development does not satisfy the requirements of the NSW Metropolitan Strategy 2005, the Draft East Subregional Strategy or Council's Botany Bay Planning Strategy 2031 (pp 5 and 6). These strategies contain targets for additional dwellings. Strata subdivision of the existing building will artificially preserve the building and will obstruct Council from achieving its strategic planning targets for an increase in the number of dwellings and in the LGA's permanent residential population. (c) The proposal fails to satisfy or comply with DCP 35 in that it fails to: i. Ensure high quality new multi unit housing and residential flat buildings ii. Provide for a range of housing types and forms iii. Adequately address Clause 3.3.2 in that unit sizes are not large enough and there is a lack of mix of unit types (d) The proposal does not satisfy Sections 6.1, 6.2 and 6.3 of DCP - Building Design and Construction by failing to provide: i. Appropriate access for people with disabilities to facilities and amenities ii. Doors and doorways of adequate width and design to enable access to all public areas within the buildings iii. Room shapes and dimensions which allow flexibility in use and furniture arrangement iv. Rooms off a central circulation space connected to the entry v. Units which comply with the following requirements: 1. Studio 60m 2 2. One bedroom 75 m 2 3. Two bedroom 100 m 2 4. Three bedroom 130 m 2 5. Four bedroom 160 m 2 (e) The proposal does not satisfy Section 3.2 of Off Street Car Parking DCP by failing to provide: 1. One space per small or medium dwelling 2. Two spaces per large dwelling 3. One visitor space per five dwellings (f) The proposal fails to satisfy Section 9.2 of DCP 7 - subdivision. (g) The proposed development fails to satisfy s.9.2 DCP Access. (h) No information provided (i) The proposed land subdivision fails to satisfy s.4, 5, 6, 7 and 8 of the Guidelines for Design of Stormwater Drainage systems. (j) The proposed development fails to satisfy SEPP BASIX 2004 as no certificate has been provided as part of the Development Application. (k) The present residential flat building on the site is obsolete and of low quality and fails to comply with: 1. The objectives and controls of the LEP, the zone, DCP 35, DCP Building design and construction, DCP Subdivision 2. The planning objectives for quality residential development 3. Inter-apartment acoustic provisions of the Building Code 4. The need for greater diversity in housing choice in the Botany Bay Council area and the locality of Hillside in particular , and to permit the strata subdivision of the residential flat building would have the effect of prolonging the life of an obsolete and low quality building and inhibiting the redevelopment of the site for quality residential development. (l) The land subdivision would have the effect of: a. Restricting the opportunities for development of the site and reducing the flexibility of design for future development which would meet the objectives and controls of Council, of Council's planning objectives for high quality residential development and the Council's strategic objective for increased population in the Council area in general and Hillsdale in particular. b. Reducing flexibility of vehicular access to the site by reliance only on Flack Avenue (m) The development is not in the public interest in that for the reasons referred to, the development is contrary to the objects of the Environmental Planning and Assessment Act, section 5 (a) (i), (ii) and (vii). Evidence and Submissions

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"The proposal for improvements to the building and its curtilage would be acceptable were it not for the proposed land subdivision and strata titling of the project". 35 Council's expert Mr Neustein, stated in the Joint Expert report, inter alia: i. Locality of Hillsdale identified in Botany Bay Planning Strategy 2031 as a target area for substantial increase in dwelling numbers to meet requirements set by the State Government. The Strategy calls for additional 330 dwellings on current base of 1560 incl Southport Tower. ii. Core of Hillsdale nearly all Strata subdivided. iii. Subject site is one of only three large sites capable of major redevelopment iv. Lacking a mechanism for dissolution of strata schemes, the life of a building in multiple ownership is in excess of 50 years. v. Bulk of the remainder of the Hillsdale locality is small lot, single family housing which could be subject to increased density to reasonable but not sufficient extent by either site amalgamation or subdivision, subject to zoning changes being investigated. vi. Approved DA for the site allows for 6 storey building and a FSR of approximately 1.4:1 well above that normally permitted. The Approved scheme, compliant with SEPP 65, increases apartment numbers by approximately 30 dwellings. vii. Small units, poor access design, surface parking and limited site landscaping within existing building - standards no longer suitable for housing. viii. The termination of strata schemes is very difficult and no evidence is provided that this may be achievable in the future. ix. 1 bed units comprise 58% of overall unit mix, with the other 42% being 2 bed units. Strata subdividing development would prolong limited mix of housing which is not suitable for increasing local population which will need a variety of unit sizes. x. Best use of the subject site is for greatly increased density of development. xi. The orderly and economic interests of the community at large require the land to be put to its best use and, if not, to retain sufficient flexibility for this to be done in the short to medium term. 36 The Applicant's expert witness, Mr Fletcher stated in the Joint Expert report, inter alia: i. The proposal is entirely consistent with the primary objective of the zone in that it provides for continued use of the site for the purposes of housing other than detached housing, and is an appropriate location. ii. The secondary objective (a) is not relevant to the subject development proposal as this is not an "identified site" under the LEP. iii. The proposal is entirely consistent with secondary objectives (b) and (c) in that it proposes alterations and upgrading of an existing residential flat building that will improve the quality of the residential amenity by providing improved landscaping and good design with upgraded fittings and fixtures in the proposed renovations and, by doing so, will revitalise and improve part of an older established medium density residential area by rehabilitation and improvement of an existing development. iv. Given that the building was constructed in the 1960s it is not surprising or unexpected that the existing building does not meet some of the current standards of Council's DCP. Nevertheless, the fact that the building contains units that are smaller in area than contemporary standards in relation to unit sizes and unit mix, does not mean that the building is unsound, unhealthy, obsolescent or inappropriate for continued residential use. v. Council's expert Michael Neustein stated that no objection would be taken to the renovation of the subject building were it not to be strata subdivided. In my opinion it is the age, characteristics and condition of a building that are the key determinants of its suitability for redevelopment. The need to consolidate separate ownerships is a constraint but is not sufficient reason to deny an otherwise desirable upgrading of the building. vi. In relation to unit sizes, it is my opinion it would be unreasonable to retrospectively apply the requirements for new development to the refurbishment of a building constructed more than 40 years ago. vii. It is clear that Council's preference is for demolition and total redevelopment of the land. However, for that outcome to be achieved the financial feasibility would have to provide a greater return to the property owner than the return from the proposed refurbishment in order for there to be an economic incentive for redevelopment.

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39 Mr Neustein states that Hillsdale had already been Strata Subdivided and that the map cross hatching (indicating future redevelopment areas) in relation to the Hillsdale area was in error and the mapping was wrong. He considers this is a key site for achieving the Council's Metropolitan dwelling targets and he referred the court to the objectives of the plan. 40 On behalf of the Respondent it is submitted: (a) The building in its present form does not meet contemporary standards especially in terms of size and amenity and does not comply with DCP 35 and DCP Building Design and Construction (BDC). (b) The refurbishment of the existing building does not require development consent as it does not amount to development. The construction of the two new units does require development consent. Notwithstanding that they are in breach of DCP 35 and DCP BDC, the Council does not oppose the grant of development consent. The amenity and size of the unit matches that which is already there. (c) It is against this background that the issues in dispute may be considered, namely, whether the Court would or should grant development consent for: i. the strata subdivision of the existing residential flat building ii. the proposed subdivision to divide the lot of 5636 sq m into two lots - Lot 10 of 3,824 sq m and Lot 11 of 1811 sq m. (d) In the circumstances of this case at least one of the objects of the EP&A Act, s5(a)(ii) is a mandated matter for consideration under s.79C(1) see: i. Carstens v Pittwater Council (1999) 111 LGERA 1 at [20]-[27} ii. BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237 at [99]-[114]. (e) The imperatives of planning since the Metropolitan Study require the promotion of the orderly and economic use and development of land to provide dwellings in Botany Bay and Hillside in the period to 2031. (f) What is proposed squanders an opportunity for development in conformity with those planning objectives on a site ripe for redevelopment. It squanders the opportunity for the proper redevelopment of a large area of land in Hillsdale to provide much needed dwellings. To grant the strata subdivision and/or the land subdivision would be contrary to an objective of the Act and hence the public interest. Assessment and Findings

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47 We note that the Strategy 2031 contains a number of constraints and opportunities including: Sydney Airport; Port Botany; heavy industry hazardous goods routes; and land severely affected by aircraft noise. The respondent submits the subject site as shown in figure 2 is one of the few large residentially zoned sites in Hillsdale. The Strategy states "in terms of development potential that the eastern part benefits from fewer environmental impacts than elsewhere in the LGA and notes that additional development potential may be created in the medium term following investment in public transport, site assembly and public domain upgrades. This particularly applies to East Lakes, Hillsdale and Pagewood". 48 The Strategy defines short term as, up to 4 years medium term for 7 years and long term beyond 2015 it states that "the Hillsdale short-term development area is north of the South Point shopping centre ... more significant intensification at Hillsdale is particularly constrained due to the high proportion of strata title units (higher than for East Lakes) ... "The Strategy comments under the medium to long term: the remaining parts of Hillsdale centre can also be considered for intensification pending further investigation. Hillsdale already contains a higher density residential development and significant strata title tenure". Under actions, the strategy includes increased residential density potential around Hillsdale/Southpoint (east of Rhodes Street). The subject site is on the eastern side of Rhodes Street although we also note that it is not hatched for investigation as higher density residential. The Strategy also contains a number of actions including increased residential potential around Hillsdale, Southpoint - east of Rhodes Street, and contains LEP and development control considerations with a medium term timing. 49 Mr Hemmings submits that the Botany Bay Planning Strategy 2031, does not refer to the subject site for either the short or medium to long term redevelopment actions of the Plan including actions related to the provision of new dwelling stock. Nor does DCP 35 nor DCP 7 refer to the subject site. 50 As a strategic document the Planning Strategy 2031, provides broad objectives and a vision for Botany Bay local government area and as it states "is only a guide for Council's consideration". In our opinion it cannot be interpreted to provide the same detail as legislation or indeed a statutory planning instrument including a zoning map to a local environmental plan, where each site has a particular zone and controls.

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69 The refusal to allow the strata title subdivision does not prevent the refurbishment and it will allow the building to continue to provide a form of housing for which it was originally constructed without denying the opportunity for comprehensive redevelopment, whether that be in the medium or longer term. 70 It was submitted by Mr Hemmings, that the subdivision is permissible with consent and the subject site is not an identified site in terms of the controls and to make it so would be a torturous interpretation. We accept that the subject land is not an identified site but a merits assessment does not lead us to the conclusion that the subdivisions warrant approval. 71 The Court was also referred to other approvals granted by council for strata subdivision and the fact that the controls and guidelines do not prevent the strata subdivision of refurbished blocks of flats. However, in our merit assessment of the proposed subdivisions for this site they do not warrant approval. 72 Mr Hale submits that under Clause 9.2 "Council may grant consent subject to the building complying with all of Councils DCP's and policies current at the time of the application which apply to multi unit residential buildings". However, in our assessment there are competing provisions and the various provisions must be read in context. 73 Amenity of the units would not on its own warrant refusal, however, at the same time, a building that does not meet current standards should not have its life artificially extended by strata titling when this would frustrate its timely redevelopment in an orderly and economic manner consistent with the object of the Act. It was agreed between the experts the design of the residential flat building on the site would not be granted approval today because of deficiencies in design and layout. And in our assessment the continued use of the building is not objected to but at the same time this does not mean the strata title subdivision should be allowed in the circumstances of this case. 74 On receipt of conditions to reflect our findings above, the formal Orders of the Court will be: 1. The appeal in respect of the property known as 24 Rhodes Street Hillsdale is upheld in part only. 2. That part of the development application submitted to Botany Bay City Council being development application no. 10/119 for: (a) alterations to the Residential Flat Building to provide an additional two units, refurbishment, parking and landscaping is granted approval subject to the conditions of consent contained in Annexure "A"; (b) the strata title subdivision and Torrens title subdivision is refused consent. 3 The exhibits except C, D and E are returned to the parties.

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