Sapsford Financial Services Pty Limited v Woollahra Council

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

DATES OF HEARING: 7-8/05/2007 and 20/06/2007

APPLICANT Mr F. Amirbeaggi, solicitor of Yates Beaggi LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Rigg, solicitor of Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10985 of 2006 Sapsford Financial Services Pty Limited v Woollahra Council

JUDGMENT 1 This is a Class 1 Appeal No. 10985 of 2006 between Sapsford Financial Services Pty Limited and Woollahra Council in regard to a proposed development of seven units in an apartment building of five storeys with basement car park for 14 cars on land known as No. 53 Birriga Road and No. 250 Old South Head Road, Bellevue Hill.

2 The land is rectangular and has two street frontages of 15.25 metres and an area of 741.7 square metres. The site slopes steeply from Birriga Road down about 10 metres vertical to Old South Head Road. The proposal has a floor space ratio of 1.22:1 and the land is zoned Residential 2(b) under the Woollahra Local Environmental Plan 1995. In that zone residential flats are permissible with consent.

3 The proposal, however has a number of statutory non-compliances, namely: o The minimum site area for residential flat buildings under cl 10A and 10B of the LEP is 930 square metres, o The minimum frontage width of a site is 21 metres and o The maximum floor space ratio under cl AA and 11 under the LEP is 0.875:1. 4 Under the applicable Woollahra Residential Development Control Plan 2003, there is a limit under cl C.4.6.6 of a maximum of four storeys to Birriga and Old South Head Road, however this is not raised in issues.

5 The locality in which the site is situated is an area generally characterised by residential dwellings of various ages and building forms. The adjoining property to the northeast, No. 55 Birriga Road, is occupied by a residential flat building recently redeveloped for a four storey building. The adjoining property to the east, No. 252 Old South Head Road, is occupied by a single storey dwelling house. The adjoining property to the southwest, No. 51 Birriga Road, also known as 248 Old South Head Road, is occupied by a three storey residential flat building. That building steps down the site so that it is three storeys to both street frontages.

6 The statutory controls are: o State Environmental Planning Policy No. 65 o Designer Quality of Residential Flat Development, o the Woollahra Local Environmental Plan 1995. 7 Also applicable are the controls being: o the Woollahra Residential Development Control Plan 2003, o Bellevue Hill South Precinct and o the Woollahra Access Development Control Plan and o the Development Control Plan for Advertising of Applications for Development and Applications to Modify Development Consents.

(1) the proposed development does not comply with or is inconsistent with the respondent's planning control in terms of the following; (i) inadequate site area, (ii) inadequate site frontage with (iii) excessive floor space ratio, (iv) inadequate side boundary setbacks. The proposed development is inconsistent with the following planning provisions: A cll 9, 11, 12 and 14 of State Environmental Planning Policy 65 Design Quality of Residential Flat Development B objectives 2(k)(iii), 10A(a)(b), 11AA(a)(b)(d) and cll 10B and 11 of the Woollahra Local Environmental Plan 1995, C performance criteria 4.6.6.3, criteria 3.2.1, criteria 5.2.5 and 5.4.5 and objectives 4.6.1 and 5.1.3 of Woollahra Residential Development Control Plan 2003. As such the proposal would result in significant adverse visual impact on the Birriga Road and Old South Head Road streetscapes in terms of bulk, scale and character. In addition the proposal will have significant adverse impact on the internal amenity for adjoining properties; (2) The proposed development does not comply with or is inconsistent with the respondent's planning control in terms of the following; (i) inadequate site area, (ii) inadequate site frontage with (iii) excessive floor space ratio, (iv) inadequate south western side boundary setback. The proposed development is inconsistent with the following planning provisions: A objectives 10A(b), 11AA(c), 12AA(d) and cll 10B and 11 of the Woollahra Local Environmental Plan 1995. B performance criteria at 5.2.5 and objective 5.2.2 of Woollahra Residential Development Control Plan 2003. As such the proposed development would result in significant overshadowing to the northeast facing windows of No. 51 Birriga Road; and (3) Matters raised by residents in letters of objection to the respondent which refer to overshadowing, the excessive excavation which would cause loss of amenity to residents of 51 Birriga Road, loss of privacy and loss of air and light.

9 The respondent's evidence was heard on site from a number of objectors who had written submissions and amongst those persons are: o P Grant of 1 and 11/51 Birriga Road, o Paramoo Pty Limited of 3/51 Birriga Road, o L Bradshaw of 6/44 Birriga Road, o F and Z Tutuncoo of 4/51 Birriga Road, P Bowen of 9/51 Birriga Road, o P Grant of 1 and 11/51 Birriga Road, o A Brabeck of 12/51 Birriga Road, o W Udayef of 6/51 Birriga Road and o P Rogers of 5/51 Birriga Road. 10 Also for the respondent was Mr D Booth, Town Planner for the council.

11 The applicant's evidence was heard from Mr A Betros, Consultant Town Planner.

12 On the first day of the hearing, whilst on site, it was put by the objectors that units in No. 248 Old South Head Road had existing direct sun to several apartments when the shadow diagram, in exhibit B, showed they had no sun. By way of explanation No. 248 also has frontage to Birriga Road where its address is No. 51 Birriga Road.

13 A simple inspection of the units at that time revealed that the objectors evidence was probably correct. The parties experts examined the shadow diagrams at the direction of the Court and concluded that it did show more shadows existing than actually occur. Also in examining the drawings I found a number of inconsistencies amongst the architectural landscape and engineering drawings. The applicant sought adjournment, without objection from the respondent, to address these problems that prevented proper assessment of the proposal.

14 The updated drawings were renotified and there were further written objections from: o M Webber of 8/51 Birriga Road, o A Brabeck of 12/51 Birriga Road, o P Bowen of 9/51 Birriga Road and o P Grant of 1/51 Birriga Road. 15 The objectors had the concerns of: (a) the development application exceeds a number of statutory standards, (b) it is too big for an undersized allotment, (c) it is larger and higher than a development consent in 2004 on the same site that also exceeded the floor space ratio but it had a floor space ratio of 0.917:1 and (d) increased bulk will rob a number of apartments of valuable direct winter sun from habitable room windows, the loss of sun will be considerably greater than even the 2004 approval.

16 The two experts had assessed the proposal in a joint report and agreed that the proposal is acceptable and should be approved. The reasons they gave in summary are: (a) The proposal complies with the required site area for deep soil planting; (b) The proposal complies with the footprint requirement for buildings on a site of this size; (c) The exceedence of the height control and setback control is a minor portion of the top floor unit that creates a loss of sun to one window of Mrs Brabeck's apartment for half an hour in mid winter. All other apartments that lose sunlight due to the proposal, still maintain a minimum three hour sun midwinter according with the applicable development control plan controls; (d) The street setbacks exceed the requirements, especially the Old South Head Road area, where the front's garden is 11.8 metres when 4.6 metres is all that is required; (e) The proposal provides 14 car spaces when 12 are required; (f) The floor space ratio exceedence is mostly caused by floor space beneath the natural ground level. The multiple storeys are gained by excavation up to 9 metres deep into the site so that the height and side setback requirements are largely met. As a result the above ground floor space ratio exceedence would calculate if admissible under the statute as 0.995:1 representing about 87 square metres of non compliant floor area; and (g) The State Environmental Planning Policy No. 1 objection should be granted on the basis of s 5(a)(ii) of the Environmental Planning Assessment Act 1979.

17 The respondent put that the applicant's evidence, and even that of its own expert, is based on merit assessment of the proposal when the accepted test for a State Environmental Planning Policy No 1 objection is under the Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 Lloyd J case. Its tests, especially test 4 asks: is compliance with the standard unreasonable or unnecessary in the circumstances of this case? The respondent said in this case the site is undersized, and the proposal is for an oversized building that creates impacts on neighbours contrary to the floor space ratio objective in cl 11AA(c). The site is 741.7 square metres when 930 square metres is required before residential flats become permissible. The site has 15.25 metres frontage when 21 metres is required before residential flats become permissible.

18 The floor space ratio is exceeded by an actual floor space area of 256 square metres which is equivalent to the top two storeys of the proposal. Even the top storey at 83 square metres is about equal to the exceedence of the floor space ratio if, as the applicant requests, you ignore the levels excavated below natural ground. As a result, the respondent says, even by that measure the proposal is one storey too high. 19 Looking at the shadow diagrams in Exhibit K, the respondent says delete the top storey and some of the additional shadow becomes valuable winter sunlight to the neighbours, and delete two storeys to obtain floor space ratio compliance and several other apartments get sunlight instead of shadow.

20 The Court must assume the statutes have work to do other than just merit. Floor space ratio is a basic control on building bulk and it is the bulk of the proposal that is causing impact contrary to the objectives of the standard in cl 11AA(c).

21 In addition in a de novo hearing the Court is required to compare the proposal not with a past approval of the council, but with the actual controls. It is true that the development control plan only requires the preservation of the three hours of sunlight midwinter to windows that are defined as north facing and in No. 248 the "north facing" windows are a little outside that provision. But, they are still the major windows to habitable rooms of many apartments in the building that afford appropriate amenity that would be adversely affected under the statutory objective. The statutory objective overrides the provisions of any development control plan. 22 The respondent says, in addition the State Environmental Plan Policy No. 1 objection of the applicant in Exhibit 5 tab 2 pp 30 and 37, made the statement that the floor space ratio exceedence is not responsible for adverse shadow impacts, clearly it is responsible for the impacts incurred.

23 Overall I have come to the conclusion that the respondent's submissions are correct, that the adverse shadow impacts are the result of statutory floor space ratio exceedence, and as a result, the State Environmental Planning Policy No. 1 objection is not well founded. In addition one could make the observation that this is an undersized lot and that fact forms a constraint to development. Usually constraints mean one can only achieve something less than the maximum development, not a 39% exceedence of the statutory standard floor space ratio.

24 Since the proposal fails on the basis of the State Environmental Planning Policy No. 1 objection, no further assessment is required, therefore the orders of the Court are: (1) The Appeal is dismissed, and

(2) The exhibits are returned to the parties except Exhibits 1, 2, Exhibit 5 tab 2, 9 and Exhibits G, H, J, K and L.

      K G Hoffman
      Commissioner of the Court
      ljr

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