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[2014] NSWLEC 1060
Land and Environment Court (NSW)
2014-03-18
Mr P
Original judgment source is linked above.
Background and the proposal 10In 2008, the Court upheld an appeal against Council's refusal of DA 635/2007, for a nine level residential flat building on the site with 42 units and basement parking for 58 cars (Maygood Australia Pty Ltd v Willoughby City Council [2008] NSWLEC 1507 [the original consent]). In 2010, the Court upheld an appeal against Council's refusal of a modification application, which amended the dwelling mix and increased the number of units to 47. The modification of the consent included amending Level 9, to replace two units with four units and, by condition, the eastern half of the southern external wall of Level 9 was setback 14.1m from the southern boundary, to match the setback of the western half of the southern external wall (exhibit B, tab 1(d), f 25) (Maygood Australia Pty Ltd v Willoughby City Council [2010] NSWLEC 1337 [the approved development]). 11In 2013, the Court dismissed an appeal against Council's refusal of a development application DA 301/2012, to reconfigure Level 9 and provide a new Level 10 to accommodate four two storey units, each with three bedrooms and a media room (the previous appeal). 12The proposal consists of the following amendments to the approved development (exhibit B, tab 1(b), ff 15-18):
Planning Framework 13The parties agreed that the proposal is not captured by cl 4 'Application of Policy' of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65), which states: (1) This Policy applies to development being: (a) the erection of a new residential flat building, and (b) the substantial redevelopment or the substantial refurbishment of an existing residential flat building, and (c) the conversion of an existing building to a residential flat building. (2) If particular development comprises development to which subclause (1) applies and other development, this Policy applies to the part of the development that is development to which subclause (1) applies and does not apply to the other part. 14However, the parties submitted that the provisions of SEPP 65 and the Residential Flat Design Code (RFDC) are a relevant consideration in this matter, as an objective standard against which the merits of the proposal can be assessed, on the basis that the approved development was assessed with regard to the provisions of SEPP 65. 15The relevant design quality principles of SEPP 65, at Part 2, are context, scale, built form, density and aesthetics. 16The site is within the R4 High Density Residential Zone, pursuant to LEP 2012 and the proposal is permissible with consent. 17The relevant aims of LEP 2012, at subcl 1.2(2), are as follows: (d) for urban design: (ii) to promote development that is designed and constructed: (A) to enhance or integrate into the natural landform and the existing character of distinctive locations, neighbourhoods and streetscapes, and (B) to contribute to the desired future character of the locality concerned (e) for amenity: (i) to maintain and enhance the existing amenity of the local community, and (ii) to reduce adverse impacts from development on adjoining or nearby residential properties 18The relevant objectives of the R4 zone are as follows: · To provide for the housing needs of the community within a high density residential environment. · To provide a variety of housing types within a high density residential environment. · To allow for increased residential density in accessible locations, while minimising the potential for adverse impacts of such increased density on the efficiency and safety of the road network. · To encourage innovative design in providing a comfortable and sustainable living environment that also has regard to solar access, privacy, noise, views, vehicular access, parking and landscaping. 19The site is located at a zone interface. The zone to the north and west of the site is the B4 Mixed Use Zone (LEP 2012 Land Zoning Map, exhibit B, vol 2, tab 9, f 81). The properties within the R4 zone and the B4 zone, surrounding the site, have a height limit of 34m (LEP 2012 Height of Buildings Map, exhibit B, vol 2, tab 9, f 82). The properties within the R4 Zone have a maximum FSR of 1.7:1 and the carpark to the north of the site and the childcare centre and semi detached dwellings on the western side of Devonshire Street do not have a maximum FSR (LEP 2012 FSR Map, exhibit B, vol 2, tab 9, f 80). 20The parties agreed that the objectives of the height development standard are a relevant consideration and that the proposal complies with the height development standard. The relevant objectives of the Height of Buildings clause, at subcl 4.3(1), are as follows: (b) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (d) to minimise disruption to existing views or to achieve reasonable view sharing from adjacent developments or from public open spaces with the height and bulk of the development, (e) to set upper limits for the height of buildings that are consistent with the redevelopment potential of the relevant land given other development restrictions, such as floor space and landscaping, (f) to use maximum height limits to assist in responding to the current and desired future character of the locality, (g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood, (h) to achieve transitions in building scale from higher intensity business and retail centres to surrounding residential areas. 21The relevant objectives of the FSR development standard, at subcl 4.4(1), are as follows: (a) to limit the intensity of development to which the controls apply so that it will be carried out in accordance with the environmental capacity of the land and the zone objectives for the land, (b) to limit traffic generation as a result of that development, (c) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (d) to manage the bulk and scale of that development to suit the land use purpose and objectives of the zone, (i) to achieve transitions in building scale and density from the higher intensity business and retail centres to surrounding residential areas, 22Clause 4.6 of LEP 2012 provides flexibility to the application of certain development standards to particular development. The applicant must provide a written request that seeks to justify the contravention by demonstrating the following, at subcl (3): (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. 23The consent authority must be satisfied, at subcl (4), that the written request adequately addresses the matters required to be demonstrated and that the proposal is in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. 24The proposal is subject to the objectives and controls of Willoughby Development Control Plan 2006 (DCP 2006). 25Subclause C.3.2.1 design principles of DCP 2006, includes the following in relation to overshadowing: Minimise the degree of overshadowing of adjacent buildings or open space by using measures such as variation to wall setbacks, roof form and building height or incorporating habitable rooms in roof space. Solar access is to be available to the principal portion of recreational open space of the development for at least 3 hours between 9am and 3pm on June 22. The forth facing windows of living areas and the principal portion of the primary recreational open space of adjoining buildings should have at least 3 hours of sunlight between 9am and 3pm on June 22. Where existing overshadowing by buildings and fences is greater than this, solar access should not be reduced by more than 20% (measured in square metres). 26Subclause D2.5.1 of DCP 2006 includes the following in relation to density and height: To encourage housing densities appropriate to the capacity of the site and its locality while minimising the impact of development on significant views from and solar access to adjoining residential properties. To ensure that the height and scale of new development are not excessive and relate well to the local context. 27Subclause D2.13.3 of DCP 2006 requires that proposed development does not impact on neighbouring dwellings achieving 3 hours direct solar access in mid-winter.
Public submissions 28Two written objections to the proposal were included in the Council's bundle (exhibit 1, tabs 11 and 12). Their objection to the proposal can be summarised as:
Expert evidence 29Expert planning evidence was provided by Ms Deborah Laidlaw on behalf of the Council and Mr Nigel Dickson on behalf of the applicant. 30The experts agreed that development in the vicinity of the site has the following FSRs: Address Zone FSR Storeys Notes 25-29 Devonshire St 'Camberley' R4 1.6:1 8 storeys Ms Laidlaw included the portion of the site fronting Claude St (1.6:1) and Mr Dickson did not (1.852:1) approved c1979 1.852:1 16-22 Devonshire Street 'Imperial Terrace' R4 1.88:1 9 storeys 21-23 Johnson Street 'Montpellier' approved c1970 R4 1.66:1 9 storeys 41-45 Claude Street, approved 2011 R4 2.14:1 9 storeys (exhibit B, vol 2, tab 6, p 4) 38 Albert Street, approved 2012 B4 3.86:1 10 storeys FSR standard 2.7:1 and bonus FSR 1.3:1 for a hospital; hospital component of proposal is 0.88:1 (exhibit B, vol 2, tab 8, f 67 and p 5)
31The height of the approved development is not specified on the architectural drawings (exhibit B, vol 3, tab 1(d), ff 28-33). The architectural drawings of the proposal notes the height of the ridge of the approved development as RL120.55 (exhibit B, vol 3, tab 1(b), f 18, west elevation). The height of the proposal is RL121.63, which is 31.03m above ground level, at the north-western corner of the proposal, RL 90.60 (as shown on the site survey, exhibit B). 32The FSR of the approved development is 2.32:1 and the proposal adds an additional 0.13:1, creating a total FSR of 2.44:1 (exhibit B, vol 3, tab 1(e), f 70).
Streetscape impact 33The experts disagree on the impact of the proposal on the streetscape of Devonshire Street. 34According to Ms Laidlaw, the approved development was able to extend closer to its northern boundary, breaching the then site controls because of the relationship of the site with the carpark to the north and resulting in a 'lower, fatter form, which in the context of the height and scale of the car park to the and the eight storey Chamberley [sic] provides an appropriate streetscape fit'. In her view, 'the proposed development, providing for two additional storeys above that of Chamberley [sic] and substantially above the car park has no streetscape justification' (exhibit 3, pars 2.32 and 2.34). 35According to Mr Dickson, the proposal provides a distinguishable 'top' to the building form, consistent with the RFDC, which is recessive (exhibit 3, par 2.39.2).
The contravention of the FSR development standard 36Mr Dickson prepared a written request seeking to justify the contravention of the FSR development standard, pursuant to cl 4.6 of LEP 2012 (exhibit B, vol 3, tab 1(e), ff 67-81). According to Mr Dickson's written request, it is unreasonable and unnecessary for the proposal to comply with the FSR development standard for the following reasons:
Submissions 40Mr Tomasetti submitted that the Council has wiped aside development standards for nearby sites, as evidenced by the recent approvals for 38 Albert Street and 41-45 Claude Street. 41Ms Carpenter submitted that there is no evidence that the Council owned properties to the north and west of the site will be redeveloped and the applicant's view that it is likely these properties will be redeveloped is merely speculation.
Issue of res judicata 42The Council contends that the proposal is the same as that sought under an earlier development application, which was refused by Council and dismissed by the Court on appeal (the previous appeal). 43The plans filed in the previous appeal are not before me in evidence and so I am unable to compare the proposal with the previous proposal. I have only the description of the previous proposal in the judgment (Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 1205 par 1); the shadow diagrams (exhibit B, vol 1, tab 2) which compare the shadows cast on the northern elevation of 'Camberley' by the proposal, the previous proposal and the approved development; and dotted lines on Section 01, which indicate the roof overhang of the previous proposal (exhibit B, tab 1(b), f 18). 44The previous proposal was assessed by Council and the Court on appeal under a former LEP, Willoughby Local Environment Plan 1995 (LEP 1995). While the commissioner, in her deliberations, gave the provisions of LEP 2012 significant weight, the relevant development standards under which the development was assessed were those in LEP 1995 (Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 pars 29 - 30 and Maygood Australia Pty Ltd v Willoughby City Council (No 2) [2013] NSWLEC 1205 par 36). 45Under LEP 1995, the site was in the Residential 2(d) Zone. The development standards in LEP 1995 for the 2(d) zone were a height of 9 storeys (LEP 1995 cl 24(1)(d)) and a FSR of 1.5:1 (LEP 1995 cl 23(1)(d)). The objectives for the 2(d) zone were not the same as the objectives for the R4 zone (LEP 2012) and there were no objectives for the height and FSR development standards in LEP 1995. 46The evidence before me suggests that the proposal may be similar, however it is not precisely the same as the previous proposal sought under an earlier development application. Importantly, the change in the planning regime means that the circumstances have changed. The proposal must be assessed under the provisions of LEP 2012, unlike the previous proposal which was captured by the savings provision of LEP 2012.
Is the contravention of the FSR development standard justified? 47I do not accept that there is sufficient evidence before the Court to allow me to conclude that the FSR development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable (Wehbe v Pittwater Council [2007] NSWLEC 827 par 47). 48In order for development consent to be granted for a development that contravenes a development standard in LEP 2012, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2012) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012). 49I accept the agreement of the planning experts that the proposal is not inconsistent with the relevant objectives of the R4 zone and the relevant objectives of the FSR development standard, other than objective (i). It is Ms Laidlaw's view is that the proposal is inconsistent with cl 4.4(i) of LEP 2012, 'to achieve transitions in building scale and density from the higher intensity business and retail centres to surrounding residential areas'. I am satisfied that the proposal is consistent with cl 4.4(i) of LEP 2012, for the reasons provided in the following paragraphs. 50The current planning regime has a consistent maximum height of 34m across the R4 and B4 zones (LEP 2012 Height of Buildings Map, exhibit B, vol 2, tab 9, f 82). The difference between the R4 and B4 zones is the change in the maximum FSR. The B4 zone has a higher maximum FSR of 2.7:1 or no maximum FSR for the Council owned properties around the site and the R4 zone has a maximum FSR of 1.7:1 (LEP 2012 FSR Map, exhibit B, vol 2, tab 9, f 82). This means that under the current planning regime, the desired character for this area is to be a consistent height across the two zones, with the mixed used zone to be more of an urban and dense character and the adjoining high density residential zone to have buildings with a smaller footprint, so that they are within a landscaped setting and provide adequate building separation. 51In the original consent, the FSR was 2.137:1, which exceeded the FSR development standard of 1.5:1 (Maygood Australia Pty Ltd v Willoughby City Council [2008] NSWLEC 1507 par 7). The additional FSR, above the development standard, related to the non-compliance of the building's setback on its northern side, adjacent to the carpark, as the setbacks on the remaining three sides of the development, at the time of the original consent, were compliant (Maygood Australia Pty Ltd v Willoughby City Council [2008] NSWLEC 1507 pars 19, 46, 61). Part of the justification for the lesser setback on the northern side of the development was because the site abuts the six storey carpark and the incursion of the development, into the building setback controls, did not intrude into other neighbouring residential space (Maygood Australia Pty Ltd v Willoughby City Council [2008] NSWLEC 1507 par 61). That the building has a lesser setback on its northern side to the car park than the planning controls permitted, at the time of its consent, is now a fait accompli. Considered alone, it is not a reason to refuse a proposal for an additional level. 52The site is located at the zone interface, in the north-western corner of the R4 zone, adjacent to the B4 zone, on its northern and western side. The setback of the approved development on the northern side is 6.5m for the western half and 8.3m for the eastern half. This lesser setback on the northern side reflects the position of the site adjacent to the mixed use zone, which is to have a denser character. The proposal is within the maximum height development standard permitted by LEP 2012 of 34m, as it is a maximum of 30.03m high. The approved development is located within a landscaped setting, with adequate boundary setbacks (Maygood Australia Pty Ltd v Willoughby City Council [2010] NSWLEC 1337 par 47) and with a minimum setback to 'Camberley' to the south of 20.82m, of which 10m is the setback of the approved development to the southern boundary. For these reasons, I am satisfied that the proposal achieves the desired character of the area as envisaged by the current planning regime and provides an adequate transition in building density between the mixed use zone and the high density residential zone. 53I am therefore satisfied that the written request seeking to justify the contravention of the FSR development standard adequately addresses the matters required to be demonstrated in cl 4.6(3)(a) and (b) and that the proposal is in the public interest because it is consistent with the objectives of the FSR standard and the objectives for development within the R4 zone, in which the development is proposed to be carried out.
Streetscape impact 54The planning controls are aimed at continuing to encourage a high density character which will have a consistent maximum height across the B4 and R4 zones, with the mixed used zone to be more of an urban and dense character and the adjoining high density residential zone to have buildings with a smaller footprint, so that they are within a landscaped setting. For the reasons setout at par 52, I am satisfied that the proposal is consistent with the bulk and character intended by the planning controls and that it will look appropriate in its context (Veloshin v Randwick Council [2007] NSWLEC 428 par 32).
Disputed deferred condition of consent 55Condition A (exhibit 4) requires the southern wall of unit 46 (on the south-eastern corner of the proposal) to be aligned with the southern wall of unit 47 (on the south-western corner of the proposal), so that the southern wall of the proposal has a consistent setback from the southern boundary of 14.1m, with the roof to be setback a corresponding dimension. 56The proposal has the southern wall of unit 46 setback 13.6m from the southern boundary, resulting in a 500mm step in the wall in the middle of the southern elevation. 57In the approved development, Level 9 has a consistent setback of 14.1m to the southern boundary. The parties disagreed on the approved depth of the southern eaves overhang in the approved development. The approved development was subject to a condition of consent, condition 3(a), which required the southern wall to be setback 14.1m from the southern boundary, as the plan of Level 9 (exhibit C) showed a 'step' in the wall, where the southern wall of unit 47 is setback 14.1m and the southern wall of unit 46 is setback 13m from the southern boundary. Condition 3(a) (exhibit C) is as follows: The southern wall of Unit 46 at Level 9 is to be moved a further 1.1 metres north of the southern boundary, so that the southern wall of Level 9 is at a setback of 14.1 metres for its full length, as measured from the southern boundary. This amendment will necessitate some internal redesign which may require the removal of a bedroom for unit 46. 58There is a note on the Level 9 plan drawing with an arrow to the southern roof overhang over the terrace of unit 46, which states, 'Roof overhang 1.5m width'. Ms Laidlaw's evidence was that despite no mention of the roof in condition 3(a), it was assumed that the eaves overhang would remain 1.5m, requiring the outer face of the fascia on the southern side of Level 9 to be consistently 12.6m from the southern boundary. The applicant submitted that condition 3(a) only applies to the southern wall of unit 46 and not the roof, as the roof is not mentioned in the wording of the condition, so that the outer face of the fascia would remain 11.5m from the southern boundary. 59The proposal has an eaves overhang on the southern side of Level 9 of 900mm, however the ceiling height is raised on the southern side, so that the top of the roof is 4.14m above the finished floor level (FFL) of Level 9, compared to 3.4m in the approved development. The applicant's position is that the combination of the reduced eave width and the raised ceiling results in a similar shadow cast on the northern face of 'Camberley' at the winter solstice, based on the angle of the sun (exhibit B, Vol 3, tab 1(b), f 18, Section 01). The shadow study of the northern elevation of 'Camberley' indicates that the overshadowing of the northern facade on Level 5 is increased, by a minor amount, from 1pm onwards at the winter solstice (exhibit B, vol 1, tab 2, ff 8-10). 60The southern wall of Levels 4 to 8 of the approved development is setback 12m for the western half and 11m for the eastern half (exhibit B, vol 3, tab 1(d), f 38). The party wall between units 46 and 47 corresponds to the party wall between units on the levels below, however the setback is increased on Level 9 and therefore there is no structural rationale to continue the step in the southern wall on Level 9. 61It is my view that the Level 9 southern elevation should be a consistent 14.1m setback from the southern boundary, as sought by the Council, in order to further minimise or eliminate any additional overshadowing caused by the proposal, when compared to the approved development, on the northern elevation of 'Camberley', at the winter solstice.
Conclusion 62For the reasons set out in the judgment, I make the following findings:
Directions - amended drawings 63Directions were handed down on 26 March, 2014 requiring the applicant to file and serve amended architectural plans at a scale of 1:100, as follows:
Orders 65The orders of the Court are: (1)The appeal is upheld. (2)Development Application No. 501/2013 for alterations and additions including an additional level, to an approved residential flat building is approved, subject to the condition of consent in Annexure A. (3)The exhibits, other than exhibits 2, 3 and B, are returned. Susan O'Neill Commissioner of the Court ANNEXURE A
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. Decision last updated: 07 April 2014
Maygood Australia Pty Ltd
Willoughby City Council
Issues 2The Council's contentions in the matter can be summarised as: