Porebski and Associates v Woollahra Council

CASES CITED: Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46

APPLICANT Ms H. Irish, barrister Instructed by Mr J. Hones of Hones La Hood LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Rigg, solicitor of Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10939 of 2007 Andre Porebski and Associates v Woollahra Council

JUDGMENT 1 COMMISSIONER: This is an appeal against refusal of DA734/2006/1 by Woollahra Municipal Council (the council) for the demolition of 3 existing dwellings and the construction of a townhouse development at 4 to 8 Patterson Street, Double Bay (the site). The site 2 The site consists of three allotments, being Lots 15, 16 and 17 in DP12264. The northern boundary to the site has a length of 55.14 m, the eastern boundary a length of 29.95 m, the southern boundary a length of 47.82 m and the western boundary a length of 29.99 m giving a total site area of 1,534 sq m.

3 The site is generally level having only a slight fall. It is currently occupied by 3 dwellings, which are one and two storeys in height. Two of the dwellings are used as medical consulting rooms. There are a number of trees across the site and a number of significant trees on the Patterson Street footpath area adjoining the site.

4 To the north of the site, on the opposite side of Patterson Street, is a car park. To the south and rear of the site are No.s 2, 4A, 4B and 6 Court Road. These properties are occupied by a mix of single and two storey detached and attached dwelling houses and their rear yards adjoin the site. The proposal 5 The application proposes: o the demolition of the three existing buildings on site, o the erection of 7 townhouse style dwellings over a common basement car park, each of the dwellings being 3 storeys in height and containing 3 bedrooms, through the erection of a basement containing car parking for 14 vehicles with access from Patterson Street and ancillary landscaping works. Relevant planning controls 6 The site is zoned Residential 2(b) under Woollahra Local Environmental Plan 1995 (LEP 1995). The proposed used is permissible with consent in this zone. Clause 8(5) provides that consent must not be granted unless the development is consistent with the plan and zone objectives that apply to the development. There was no issue that the proposal did not satisfy the requirements of cl 8(5).

7 Clause 11 provides requirements for floor space ratio (FSR) based on a density map. The density map provides for a FSR of 1:1 for the site. The proposal provides a floor space ratio of 1.3:1 above ground and a floor space ratio of 1.42:1 including below ground area. An objection under State Environmental Planning Policy No 1 - Development Standards (SEPP1) was provided to show why the FSR development standard was unreasonable and unnecessary in the circumstances of this case. Clause 11AA provides objectives for the FSR requirements in cl 11. 8 Clause 12 provides requirements for height based on a height map. The height map provides for a maximum height of 12 m. The proposal satisfies this requirement.

9 Clause 18 provides requirements for the excavation of land.

10 Woollahra Residential Development Control Plan 2003 (DCP 2003) applies. Part 4.4 provides requirements for the Manning Road Precinct. This precinct provides for a 40% footprint (Fig 4.4.1), a 4.5 m front setback for a minimum of 60% of the building frontage (Pt C4.4.6.1), a minimum of 40% deep soil landscaped area (Pt C4.4.6.6), a maximum unarticulated length of 6 m (Pt 4.4.6.7), a maximum of 3 storeys (Pt C4.4.6.8) and a side setback of 2.5 m but increasing with height (Pt C4.4.4).

11 There was no dispute that the proposal did not satisfy the requirements for footprint with a footprint of 52%, for a front setback of 2.5 m, a deep soil landscaped area of 32% and a side setback ranging from 3.2 m to 5.3 m on the east side and 7.5 m to 4 m on the west side. 12 Double Bay Centre Development Control Plan 2002 (DCP 2002) does not strictly apply to the site however land adjoining to the east and on the opposite side of Patterson Street falls within this plan and is specifically addressed in Appendix 2 - Kiaora Lands. The appendix provides detailed controls for the future development of the Kiaora Lands site including built form envelopes. The issues 13 The Statement of Facts and Contention raises the following issues: 1) the SEPP1 objection to the FSR standard is not well founded, 2) the proposed development is an overdevelopment of the site because of the breach of the FSR standard and the breaches of the footprint, landscaped area and setback requirements, 3) the proposed development has excessive excavation, 4) the development has poor articulation, and 5) matters raised by local residents, specifically loss of privacy, overshadowing, impact on the water table and inadequate parking. The evidence 14 Town planning evidence was provided by Mr Garry Shiels for the applicant and Ms Allison McCabe for the council. Both Mr Shiels and Ms McCabe supported the proposed development. The reporting officer of the council recommended approval of the application, although it was subsequently refused by the council. 15 The following local residents provided evidence on site: o Ms Alexandra Joel of 6 Court Road, o Mr John Stewart of 2 Court Road, o Mr Michael Jacku of 4A Court Road and o Ms Elizabeth Towner of 4B Court Road. o Mr Anthony Betros, a consultant town planner provided additional evidence on behalf of Ms Joel, Mr Stewart and Ms Towner. The SEPP 1 objection - FSR The assessment approach 16 The appropriate manner of dealing with an SEPP1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 4 at par 26 where a number of questions are asked. The first question asked whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asked what is the underlying object or purpose of the standard. The third question asked whether compliance with the development standard is consistent with the aims of SEPP1.

3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance where those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the object specified in s 5(a)(i) and (ii) of the Act. 18 The question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Act. These objects state: The objects of the Act are: (a) to encourage: (i) the proper management development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment. (ii) the promotion and coordination of the orderly and economic use and development of land. 19 The fourth question asked whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The fifth and final question asked whether the objection is well founded.

The SEPP 1 objection 20 The SEPP1 objection prepared by Mr Shiels generally adopts the approach in Winten and uses the FSR objectives from cl 11AA. These objectives are: ( a) to set the maximum density for new development. (b) to control building density, bulk and scale in all residential and commercial localities in the area in order to achieve the desired future character objectives of those localities. (c) to minimise adverse environmental effect on the use or enjoyment or both of adjoining properties and (d) to relate new development to the existing character of the surrounding built and natural environment as viewed from the streetscape, the harbour or any other panoramic viewing point. 21 Objective (a): the underlying objective of the Double Bay area is to increase densities. The LEP 1995 density map identifies the land to the north and east of the site as Kiaora Lands having a maximum gross floor area of 38,000 sq m. Clauses 11(3) and 11(5) encourage a FSR in excess of the FSR contained in the density map up to a maximum of 3:1. Also exemptions are given in the calculations of gross floor area if part of the building is to be used for a small professional theatre.

22 The land to the north and to the east of the site forms part of the council's DCP 2002 - Kiaora Lands which contains height, setback and built form provisions. To the north of the site, the height limit is 6 storeys and a mixed use type of development is encouraged. To the east of the site the height limit is 12 m. While LEP 1995 does not set a maximum density for new development on the site opposite, this FSR needs to be considered in the context that council is encouraging an increase in FSR in Double Bay up to a maximum of 3:1 in the Kiaora Lands area. 23 Objective (b): the site needs to be considered in the context of the existing potential and approved development in the immediate area. This will assist in determining whether the proposal is of appropriate bulk and scale and might meet the desired future objectives. The site has a proposed FSR of 1.3:1 above ground. If basement storage and laundries are included the proposal has a FSR of 1.42:1. The SEPP1 objection states the basement storage and laundries do not contribute to any bulk and scale and as such the appropriate FSR is 1.3:1.

24 The proposal satisfies the height requirements and will provide acceptable setbacks from the eastern and western boundaries and a considerable setback from the adjoining residential properties to the south. The proposed development will be an appropriate form of development in the context of the local area.

25 In addition, the site is within the Manning Road Precinct and satisfies the relevant desired future objective that states: to establish a transition between the urban quality of Double Bay Commercial Centre and the landscape setting in built form character of the Residential Precinct. 26 The proposal has been designed to interface with the development to the north and to the east under DCP 2002 together with the existing buildings to the west and north-west.

27 Objective (c):- the SEPP1 objection states that the site has a 7.5 m setback to the southern boundary. The distance between the ground and the first floor of the proposed development and 4A, 4B Court Road is approximately 16 m with the third level approximately 18 m. In addition. there will be a 1.8 m high boundary fence between the site and the existing residential development to the south. The dwellings to the south also have extensive hedging to around 4 to 6 m in height. It is also proposed to extensively landscape each of the rear yards of the proposed townhouses. 28 A 400 mm high screen at the rear of the planter area at the third level is also proposed with the development. This is likely to eliminate any opportunities to look into the upper level of the adjoining neighbours to the south.

29 Objective (d):- the proposed development will be visible from the street and the adjoining property, however the building form will provide an appropriate form of development in this transition area between the business zone to the north and the approved development to the east and existing mixed use developments to the west and north-west. The building provides for an architecturally interesting façade treatment and has been the subject of extensive design and redesign with input from council's urban designer and will provide an appropriate building form in the streetscape. From the adjoining residences to the south, the building will be visible over the top of the existing vegetation and part of the roof form will be seen in the foreground of the existing street tree planting in Patterson Street. With the 12 m height limit for the site, any redevelopment will be seen from the adjoining developments to the south. 30 Overall, the SEPP 1 objection states that the proposal satisfies the objectives for FSR pursuant to cl 11AA of LEP 1995. The proposal also satisfies the objectives of the Residential 2(b) zone by providing a medium to high density residential development in an appropriate location and encouraging a diversity of dwelling types. Consequently, strict compliance with the development standard is unnecessary and unreasonable in this instance.

The SEPP 1 objection - findings 31 I accept the conclusion of Mr Shiels and Ms McCabe that the SEPP 1 objection is well founded. While Ms McCabe supports the approach adopted in the SEPP1 objection, she does not adopt Mr Shiels reliance on the approval on the Kiaora Land site. In my view, little turns on this difference of approach as the approval on the Kiaora Land site, in general, reflects the form of development anticipated by the built form envelopes for the Kiaora Land site. Even if the existing approval does not proceed it is more than likely that any new development would be of a similar form because of the specific requirements in DCP 2002.

32 The SEPP1 objection is premised on the different characters anticipated by the council planning controls for the front and rear portions of the site. Ms McCabe described her assessment of the proposed development in two distinct areas. Firstly, as appropriately addressing the residential properties in Court Road through compliance with the DCP 2003 requirements in relation to height setbacks, overshadowing and overlooking and secondly accepting the variations to the FSR, footprint, setbacks and site coverage at the Patterson Street frontage as they would be consistent with the form of development anticipated by DCP 2002 for the Kiaora Land, adjoining and opposite the site. There is clear support for this double-edged approach in objective (b) and the desired future character objectives for the Manning Road Precinct where Objective 04.4.1 describes the precinct as a "transition" between the Double Bay commercial centre and the residential precinct. 33 I am satisfied this is a valid and reasonable approach to the development of the site and in line with the flexible approach advocated by SEPP1 and specifically objective (d) that requires new development to relate to the existing character. I have taken this to include the character anticipated for the Kiaora Land site.

34 I support Ms McCabe's view that any departure from the planning controls that impact unreasonably on the residential properties to the rear in Court Road would not be acceptable. There is general compliance with the planning controls that relate directly to the properties in Court Road and for reasons mentioned later in the judgment, I accept that there are no unacceptable impacts on these properties.

35 The relationship with the residential development to the rear in Court Road is an important consideration. It is referred to in objective (c) in cl 11AA and also in the desired future character objectives for the Manning Road Precinct. The concerns expressed by local residents over loss of privacy and overshadowing, in my view, cannot be supported based on the separation distance of 16 m to 18 m, the existing and proposed landscaping, the compliance with the rear setback requirement and additional screening at the upper level. I note that C.5.8.5 of DCP 2003 only requires treatment to windows of adjoining buildings for privacy protection below a 9 m separation distance. 36 The overshadowing from the proposed development would also not be a reason to refuse the application as the unchallenged evidence of Mr Shiels was that the proposal satisfies the solar access requirements in DCP 2003.

37 Mr Rigg, for the council, submitted that the additional floor area provided above the FSR requirement would allow for a reduced number of dwellings through a modification or a new design. This would have a consequent reduction in impact on the residential properties at the rear of the site. In accepting that this submission is not without some merit, I agree with Ms McCabe that any reduction in potential impact is not likely to be that significant that it would warrant the amendment to the application. I have come to this conclusion because of the acceptable relationship between the proposed development and the properties to the rear, particularly the generous separation distances, the landscaping and the height of the rear elevation that is only some 7 m compared to the maximum 12 m allowable under the DCP 2003. 38 I am satisfied that there is an acceptable relationship between the proposal and the adjoining residential development even though the floor area is beyond that provided in cl 11 of LEP 1995. In my view, objective (c) is satisfactorily addressed as the proposal "minimises adverse environment effects on the use or enjoyment or both of adjoining properties."

39 The variations to the planning controls in DCP 2003 manifest themselves largely at the Patterson Street frontage where notwithstanding the variations, the building form is consistent with the form of development envisaged for the Kiaora Land site. Specifically, the front setback to Patterson Street will be consistent with that required on the opposite side of the road despite the proposed building in this location being twice the height of the proposed development. It is also consistent in terms of setback to the east of the site. This site also being within the DCP 2002 area.

40 The side setback to the east is some 5.5 m at the setback of the building but reduces with the increasing distance from the street. The adjoining site falls within the DCP 2002 area and provides for a nil setback. The western setback is larger and while not strictly complying is generally in compliance with the requirements DCP 2003. I accept that the side setbacks are acceptable in these circumstances. 41 The impact of the footprint and loss of deep soil landscape area is addressed by Ms Narelle Sonter, a landscape consultant. She states that the proposal provides functional open space, retains existing mature trees and does not threaten existing mature trees on adjacent properties. The proposal incorporates a large number of trees, shrubs and groundcover and contributes to the characteristic landscape of the locality by providing a continuous heavily vegetated band of landscape across the front of the site. Ms Sonter states this compliments the streetscape character dominated by the existing plain trees on the nature strip.

42 I accept these conclusions based on the site view and an understanding of the plans proposed in this application. I am satisfied that the breach of the footprint and deep soil landscaped area requirements does not unacceptably impact on the character and streetscape characteristics of the area. 43 Overall, I can comfortably conclude that the proposed development, notwithstanding the breach of the FSR development standard satisfies the objectives of this standard. If the variation to the development standard is tested against the objectives in cl 11AA, I accept that compliance with the development standard would be inconsistent with the aims of SEPP1 and would tend to hinder the attainment of the object specified in 5A(i) and (ii) of the Environmental Planning and Assessment Act. Consequently strict compliance with the development standard is unreasonable and unnecessary in this instance and it follows that the SEPP1 objection is well founded. Ground water and dewatering system 44 The dewatering system is required to allow for the existing ground water to be removed while the basement car park is excavated and constructed. The issues relate to the impact on the ground water during the excavation and construction and the noise associated with the pump that may operate 24 hours per day.

45 I accept that the system proposed has been satisfactorily addressed through the hydrological reports of Coffey Geotechnics including an assessment against the council's requirements. I also accept that any potential noise impacts can be addressed through the proper location of the pump and noise requirements consistent with the requirements of the Industrial Noise Policy. These matters are appropriately addressed through conditions of consent. Excavation 46 The amount of excavation for the basement car park was also raised as an issue, however it is almost totally within the building footprint and after having considered the matters in cl 18, I am satisfied that the amount of excavation is acceptable. Car parking 47 The issue of car parking related to the absence of two visitor car parking spaces. This matter was addressed in a joint report by Mr Chris Hallam for the applicant and Mr Pearce from the council who agreed that as two additional spaces were provided on Patterson Road through the closure of two driveways then the proposal was acceptable. Mr Hallam further added that potentially the on site car parking could be used for visitor parking. Also, with the redevelopment of the land opposite in Patterson Street, in excess of 300 public car parking spaces will be available. Public car parking is currently available in this location. Building design 48 The issue of building design was also raised by local residents and also by Mr Betros who maintained there was a lack of articulation in design. This was put to both Mr Shiels and Ms McCabe who advised that articulation was provided by a range of materials as well as architectural features. I accept that the building design is acceptable. Orders 49 The orders of the Court are:

1. The appeal is upheld. 2. DA 734/2006/1 for the demolition of three existing buildings and the construction of a townhouse development at 4-8 Patterson Street, Double Bay is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit A.

      G T Brown
      Commissioner of the Court

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.