Meriton v Sydney City Council

[11]

17 Clause 28C of the CSLEP 96 deals with the general requirements of development plans. Subclause (2) states: A development plan may be adopted by the consent authority only if it is satisfied that the plan adequately addresses the following matters and proposes high quality development with a floor space ratio and height appropriate for the site and context: (a) design response to an analysis of the site and its context, (b) site amalgamation, having regard to the site's size and location, to sites included or excluded from amalgamation and to the impact on the development potential of adjoining sites, (c) uses, use mix and subdivision patterns, (d) sensitivity to heritage issues and streetscape constraints, (e) tower location on the site, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (f) bulk, massing and modulation of buildings, (g) street frontage heights, (h) environmental impacts such as sustainable design, overshadowing, wind and reflectivity, (i) pedestrian, cycle, vehicular and service access, circulation and requirements, (j) impact upon, and improvements to, the public domain, (k) design excellence, having regard to clause 28D and particularly the processes referred to in clause 28D (2) (c) and (d), (l) compliance with the other requirements of this Plan. The floor space ratio and height of any building must comply with Parts 4 and 5 of this Plan. 18 It is clear from the explanatory note that a development plan (and hence a Stage 1 application) is concerned with a building design envelope, floor space ratio and height. All of the matters listed in 28C(2)(a) to (l) may be satisfied by a building design envelope, floor space ratio and height, with the exception of (k), ie design excellence. To come to a conclusion that a building is of excellent design, one would need more than the envelope within which it is contained. 19 Clause 28D sets out what the council believes constitutes design excellence. Central to the concept of design excellence are the requirements in 28D(2)(c) and (d), namely (c) whether the design for the building is the result of a competitive process that facilitates design excellence; and (d) whether there is a process which ensures continuity and demonstrates that the approved design, both in concept and detail will be realised in the completed building and that the design quality will not be diminished in its translation. 20 Ms Robinson agreed that the design of the envelope was not the result of a competitive process and that the envelope, by itself, did not exhibit design excellence. She suggested that the competitive process would be part of the Stage 2 application. In my opinion, this is consistent with the requirements of the CSLEP 96. Clause 28C(2) requires that the consent authority should be satisfied that the plan (or the Stage 1 application) adequately addresses the matter of design excellence. Since the applicant suggested that the approval of the Stage 1 application should be subject to a condition that Stage 2 is undertaken as a competitive design process, the consent authority (in this case the Court) may be satisfied on that account. 21 Notwithstanding the above, I accept Mr Dickson's opinion (with which everyone agreed) that before a consent authority can consent to a building design envelope, it must be satisfied that it is possible to plan a satisfactory building within that envelope. The applicant submitted indicative plans and elevations that demonstrate that this can be done. While the indicative plans and elevations accompany the Stage 1 application, they are not part of it and do not require approval, so that if in Stage 2 the building is planned in a different way, the Stage 1 approval does not need to be amended. To satisfy the CSLEP 96's requirement for design excellence, the design of Stage 2 must be the result of a competition between several designers. I conclude that the approval of a Stage 1 application needs to encompass only the building design envelope, height and FSR of a building, which will be designed as part of a competitive process in Stage 2. 22 I note that Brown C and I have dealt with a similar question in Anglican Church v Sydney City Council [(2003) NSWLEC 353], where we said: We accept that multi-stage applications are useful for large or controversial projects as they provide the applicant with certainty about the major parameters of a proposal before it embarks on the expensive exercise of preparing detailed drawings and specifications for a development application. The critical issue is: how much detail should be provided in the Stage 1 application as against the Stage 2 application? The principle we have adopted is that in multi-stage applications the information provided in Stage 1 should respond to all those matters that are critical to the assessment of the proposal. Where traffic generation is the critical issue, Stage 1 should include information on the precise number of cars accommodated on a site. Where the floor space is critical, Stage 1 should include the precise FSR. Where the major issue is the protection of vegetation, the footprints of the proposed buildings may be sufficient. In the proposal before us, however, the two major issues are the impact on the heritage-listed Church and the heritage streetscape. In our opinion, two building envelopes, within which buildings of any shape or design might emerge, are not sufficient to make a proper assessment.

[26]

43 I turn to the impact on privacy, which affects the southwest and southeast apartments in Pitt Tower. The CSDCP requires a distance of 6m from boundaries for principal windows up to a height of 45m. Above 45m it states that a minimum setback of 12m is desirable. The CSDCP defines principal windows as the main windows of a living room or a bedroom. The CSDCP does not suggest setbacks for walls without principal windows. Presumably these may be built on the boundary. 44 The proposal satisfies the CSDCP, except to the extent that it provides only 6m setbacks for principal windows above 45m, rather than the desirable 12m. Despite this compliance (or partial compliance) the Pitt Tower objectors objected strongly to the north-facing windows in the proposal on the basis that they were too close to them. Ms Bunting suggested that the proposal should set back 12m from the boundary wherever there are windows, whether or not they are above 45m and whether or not they are principal windows. Given that Ms Bunting suggested a more rigorous requirement than the CSDCP and Ms Robinson applied a less rigorous test, it is useful for the Court to establish the principles against which the impact on privacy can be tested. Planning principle: protection of visual privacy 45 When visual privacy is referred to in the context of residential design, it means the freedom of one dwelling and its private open space from being overlooked by another dwelling and its private open space. Most planning instruments and development control plans acknowledge the need for privacy, but leave it to be assessed qualitatively. Numerical guidelines for the separation of dwellings exist in the Australia-wide guideline, AMCORD; as well is in the NSW-specific Residential Flat Design Code attached to SEPP 65. AMCORD recommends a separation of 9m between habitable rooms. The Residential Flat Design Code recommends increasing separation between buildings as they get taller. For buildings up to three storeys, it suggests 12m between habitable rooms and balconies, 9m between a habitable and non-habitable room, and 6m between non-habitable rooms. For tall buildings (such as the proposal) it suggests 24m between habitable rooms, 18m between habitable rooms and non-habitable rooms, and 12m between non-habitable rooms.

[27]

46 Generalised numerical guidelines such as above, need to be applied with a great deal of judgment, taking into consideration density, separation, use and design. The following principles may assist. · The ease with which privacy can be protected is inversely proportional to the density of development. At low-densities there is a reasonable expectation that a dwelling and some of its private open space will remain private. At high-densities it is more difficult to protect privacy. · Privacy can be achieved by separation. The required distance depends upon density and whether windows are at the same level and directly facing each other. Privacy is hardest to achieve in developments that face each other at the same level. Even in high-density development it is unacceptable to have windows at the same level close to each other. Conversely, in a low-density area, the objective should be to achieve separation between windows that exceed the numerical standards above. (Objectives are, of curse, not always achievable.) · The use of a space determines the importance of its privacy. Within a dwelling, the privacy of living areas, including kitchens, is more important than that of bedrooms. Conversely, overlooking from a living area is more objectionable than overlooking from a bedroom where people tend to spend less waking time. · Overlooking of neighbours that arises out of poor design is not acceptable. A poor design is demonstrated where an alternative design, that provides the same amenity to the applicant at no additional cost, has a reduced impact on privacy. · Where the whole or most of a private open space cannot be protected from overlooking, the part adjoining the living area of a dwelling should be given the highest level of protection. · Apart from adequate separation, the most effective way to protect privacy is by the skewed arrangement of windows and the use of devices such as fixed louvres, high and/or deep sills and planter boxes. The use of obscure glass and privacy screens, while sometimes being the only solution, is less desirable. · Landscaping should not be relied on as the sole protection against overlooking. While existing dense vegetation within a development is valuable, planting proposed in a landscaping plan should be given little weight. · In areas undergoing change, the impact on what is likely to be built on adjoining sites, as well as the existing development, should be considered.

[33]

The amended envelope 53 At the conclusion of the hearing I invited the applicant to consider a revised envelope that sets back 10m from Pitt Street and reduces the height by one floor. The applicant provided drawings demonstrating the new envelope and calculated the FSR to be 12.55:1 instead of the previous FSR of 13:1. The eliminated floor was one of the penthouse floors, presumably because the applicant lost less floor space this way than by eliminating a typical floor. In addition, the applicant relocated the communal recreation area to the basement, also in an attempt to minimise the loss of floor space due to amendments suggested by the Court. 54 Ms Bunting commented in writing on the amended envelope, making five points. First, the units in the west façade were too small. In my opinion, this should be addressed in Stage 2. Second, windows in the northwest elevation would create amenity problems for both the residents of the proposal and of Pitt Tower. I have dealt with this issue above, coming to the conclusion that the skewed nature of the Pitt Tower windows renders the relationship acceptable. (I agree with Ms Bunting that it is not ideal, but how can the council expect an ideal relationship between the buildings, having allowed Pitt Tower to be built within 200mm of the south boundary?) Third, the amendment should have removed a typical level rather than the penthouse level, which is smaller. I do not think that this criticism is valid. The reason for the removal of one floor is to avoid the penthouse of the Pitt Tower being blocked by the proposal. This is achieved by the lowering of the height by 3m. Fourth, it was not appropriate to consider details of the location of the communal recreation area in a Stage 1 application. If that is so, then the applicant will have to justify the appropriateness of the new location in the Stage 2 application. Fifth, the relocation of the recreation area to the basement was unsatisfactory. This comment is inconsistent with Ms Bunting's fourth point. 55 Ms Bunting calculated the new FSR to be 11.7:1. I assume that this is based on the deletion of a typical floor rather than a penthouse floor and leaving the recreation area in its current position. I therefore accept that the FSR of the amended envelope is 12.55:1 or, in rounded figures, 12.5:1.

Meriton v Sydney City Council - [2004] NSWLEC 313 - NSWLEC 2004 case summary — Zoe

At a glance

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Judgment (37 paragraphs)

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Cases Cited (1)

Cited By (19)