Steele v Waverley Council

Land and Environment Court (NSW)|2018-12-04

Nature of Appeal and Outcome

COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act (the Act) against the deemed refusal by Waverley Council of development application DA-410/2017. In this appeal the applicant seeks approval for alterations and additions to an approved residential flat building at 585 Old South Head Road, Rose Bay. The works for which approval is sought focus primarily on the attic level and facilitate an additional bedroom being provided for Unit 5 and Unit 6 taking them to three bedroom apartments.
The application was amended by leave of the Court in June 2018. Council maintains the amended application should be refused on the basis that: 1. the development has excessive bulk and scale and fails to comply with the maximum floor space ratio (FSR) development standard in cl 4.4 of Waverley Local Environmental Plan 2012 (LEP 2012); 2. the proposed height of the development is unacceptable; 3. the development has an unacceptable impact on streetscape; 4. it generates unreasonable additional overlooking of rear yards and windows of adjoining developments; and 5. it will result in unacceptable overshadowing of the adjoining property to the south of the site.
The primary matter for the Courts determination is whether the power, pursuant to cl 4.6 of the LEP 2012, ought to be exercised in order to grant development consent notwithstanding the non-compliance with the FSR standard.
For the reasons set out below at paragraph [31- 36], I am unable to form the requisite opinion of satisfaction, under cl 4.6(4)(a)(i) of the LEP 2012, that the written request adequately demonstrates that compliance with the FSR standard is unreasonable or unnecessary in the circumstances of this case.
Given I am not satisfied by this threshold issue, no power is available to grant consent to the development application. As a result the appeal is dismissed and the application refused.

The Site and its Context

The site is legally described as Lot 2 in DP 9757.
The site is located on the eastern side of Old South Head Road near the intersection with Princess Street.
The site is almost rectangular with an area of 486.7m² and has a fall from the rear of the site to the road of approximately 2.6m.
The site has the benefit of an existing consent, DA/411/2016, for demolition and construction of a three storey residential flat building comprising six units and eight basement car spaces. The break-up of the six units under the existing consent are: four two-bedroom units, and two three-bedroom units.
The locality is generally characterised by single storey dwelling houses and residential flat buildings fronting Old South Head Road. At the rear of the subject site is a transition of zoning to low density residential dwellings. The property at 3 Princess Street whose side boundary adjoins the rear of the site contains a single dwelling.

Expert Evidence

The applicant relied on expert planning evidence of Ms Jeannie Askin and the Council relied on the expert planning evidence of Ms Alison McCabe. The experts prepared a joint report that was tendered as Exhibit 3.

Planning Framework

The site is zoned R3 Medium Density Development pursuant to LEP 2012 and the proposed use, residential flat building, is permissible with consent in the zone.
The objectives of the R3 zone are relevant to the consideration of the application (cl.2.3(2) LEP 2012). They are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
The height of buildings development standard applicable for the site is 12.5m and the parties agree that the development complies with the height development standard (cl. 4.3 LEP 2012).
The FSR development standard applicable to the site is 0.9:1 (cl. 4.4 LEP 2012). The proposal seeks a total gross floor area of 17.5m², representing a FSR of 0.936:1 and a non-compliance of 17.52m² or 3.99%.
The objectives of cl. 4.4 Floor Space Ratio are: (a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs, (b) to provide an appropriate correlation between maximum building heights and density controls, (c) to ensure that buildings are compatible with the bulk, scale, streetscape and desired future character of the locality, (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality.
Accordingly the applicant has submitted a written request pursuant to cl 4.6 to vary the maximum FSR standard for the site.
Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly states: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (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. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be 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, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. …

Public Submissions

The application was publically notified, in accordance with the requirements of Waverley Development Control Plan 2012. The Council received five submissions which all raised objection to the development.
Following receipt of the amended plans the development was renotified and three objections were received. The matters raised in the submissions are summarised in Councils Statement of Facts and Contentions as follows: "• Increased bulk and scale • Non-compliance with FSR • Privacy and overlooking impacts • Traffic and parking"
At the commencement of the hearing on site the Court was addressed by the owner of 3 Princess Street (at the rear of the subject site). The concerns expressed by the objector focussed on the impact of the proposed development on their privacy, particularly to the rear yard, as well as the fallibility of the proposed landscaping to mitigate the increased overlooking and privacy impacts.

Can the variation to the maximum FSR standard be supported?

In seeking a height greater than the maximum FSR standard in LEP 2012, the onus is on the Applicant to meet the tests of cl 4.6: Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 at [25] ("Initial Action"). The Applicant's written request seeking to justify the contravention of the development standard must adequately address both:

that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a));
that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

The Court, must form a "positive opinion of satisfaction" that the Applicant's written request has adequately addressed the matters in cl 4.6(3): Initial Action at [25].
Further, in order for there to be power to grant development consent for a development that contravenes development standards in LEP 2012, I must be satisfied that the proposal is in the public interest because it is consistent with the objectives of the development standards and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 [42]-[51]. Although Wehbe concerned a SEPP 1 objection, it is equally applicable to cl 4.6: 1. The objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. The underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. Underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. The development standard has been abandoned by the council; or 5. The zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary.
The preceding tests are not exhaustive and it may be sufficient to establish only one way (Initial Action at [25]).
The applicant's written request seeks to justify the variation firstly on the basis that the objectives of the development standard are achieved notwithstanding the non-compliance with the standard. The request states: "The objectives of Clause 4.4 of WLEP 2012 are met as follows: Objective (a) (a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs. Comment: This objective is not relevant as the subject site is not located within the Bondi Junction Centre. The proposal does not hinder this objective. Objective (b) (b) to provide an appropriate correlation between maximum building heights and density controls. Comment: The FSR and building height development standard are numerical measures, which set the scale of development and its resultant impact on the streetscape and surrounding developments. The proposed building will comply with the LEP height control of 12.5m. The building as proposed will not result in adverse additional amenity impacts to surrounding properties in terms of overshadowing, privacy and view loss and will preserve the residential amenity of the locality. Objective (c) (c) to ensure that buildings are compatible with the bulk, scale, streetscape and existing character of the locality. Comment: objective (c) is met, as the proposal will provide a building, which is compatible with the bulk, scale, streetscape and desired future character if the locality, having particularly regard to the compliant height of the building. The proposed FSR, whilst exceeding the statutory control, is considered appropriate in the circumstances given the improved amenity for the property to the north, provision of a dwelling mix, as opposed to the 6x 2 bedroom units and the location within close walking proximity to services and amenities and the site being well served by public transport and convenient to a wide variety of local and regional services, facilities and employment opportunities. The proposed development represents an efficient and appropriate use of land that is compatible with the environmental capacity of the site and its R3 Medium Density Residential Zoning. Objective (d) (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality. Comment: the proposal seeks to preserve existing environmental amenity and minimise adverse impacts. It has been demonstrated that there would be no adverse overshadowing of adjoining properties and acoustic and visual privacy, having regard to Council's DCP requirements. Whilst there is a minor increase to overshadowing to the upper windows of the adjoining property, these windows will continue to receive solar access beyond that required by the DCP." (Exhibit C)
In addition the request argues that compliance with the standard is unreasonable or unnecessary for the following additional reasons: "Compliance with the development standard is unreasonable and unnecessary as the development provides an appropriate streetscape and contextual outcome. In particular, it is noted that the proposed development will broaden the dwelling mix by providing four x two bedroom units and two x three bedroom units as opposed to the six x two bedroom units. Strict compliance with the control would not comply with the underlying purpose of the Attic and Roof Design control [in the Waverley Development Control Plan 2012], which reads as follows: (a) To ensure attic rooms achieve good residential amenity and environmental performance; (b) To minimise the impact of attic levels on the streetscape and amenity of adjoining properties; (c) To allow a variety of roof forms in response to the scale and character of the building and streetscape (d) To broaden the dwelling mix by creating opportunities for larger- sized units on the uppermost storey. The dwelling as proposed is considered to be an appropriate outcome for the development in terms of dwelling mix, the streetscape and the amenity of adjoining properties. The design of the building as proposed sits well within its context providing a contemporary building and minimises impact on the residential amenity and the visual amenity of the locality. In terms of the visual impact of the proposed attic level, plans numbered 05-16 and 05-17 provide a comparison of the elements of the attic level as approved and as proposed, which are visible from the property to the rear. These confirm that there is marginal change in terms of visibility and the highest visible point of the attic will be slightly lower than the highest visible point of the approved development. In terms of visual privacy, sightlines from the proposed attic are indicated on Privacy Diagram numbered 05-18 and this confirms they will be inhibited towards the private open space of the adjoining property at the rear. In terms of visual and acoustic privacy, these will be improved for the adjoining property to the north as the open entry-way to Unit 6 as approved will be enclosed and privacy screens to the stairwell will be extended to prevent overlooking from the higher areas of the stairwell. Overshadowing to adjoining properties has been minimised. The proposal will minimise impact on north facing windows of adjoining property to the south. Windows, which receive more than 3 hours of sunlight on 21 June as a result of the approved development, will continue to do so. Solar access to private open space will be provided for more than 2 hours over more than 50% of the front and rear setback of the adjoining property to the south on 21 June." (Exhibit C)
The existing consent resulted in impacts on the adjoining property to the rear of the subject site (1 Princess Street). Ms McCabe's evidence is that some of these impacts were mitigated by conditions on the existing consent that require the installation of privacy screens. It is her evidence that the requested variation to the FSR standard should not be upheld as the proposed development is inconsistent with objective (c) and (d) of the FSR control. In the joint planning report she argues: "… 10. Having inspected the site and viewed the development from both within the existing dwelling and from the rear yard of 1 Princess - notwithstanding the acceptability or otherwise of the approved development - the proposal results in impacts on No. 1 Princess Street. … 12. The proposed changes will result in: • the fourth level being able to be viewed from the rear yard of No. 1 Princess Street; • Perceived bulk that does not exist with the current approval; • Further enclosure of the site at No. 1 Princess Street. … 80. The current approval has no habitable rooms at the rear with any window openings. 81. The sightline diagrams show sightlines to one point in the rear yard of No. 1 Princess Street. 82. The new bedroom will be able to be seen from other points in the yard of No. 1 Princess Street - a condition that does not occur in the existing approval. …" (Exhibit 3)

Consideration and Findings:

In relation to the objectives of the height of buildings development standard, the first objective is to establish limits on the overall height of development to preserve (Emphasis added) the environmental amenity of neighbouring properties. The Act and the LEP 2012 do not include a definition of "preserve" so it is appropriate to apply the ordinary meaning of the word. By reference to the Macquarie Dictionary, 'preserve' is defined as "to keep safe from harm or injury; save", "to keep up; maintain".
Having regard to the evidence, I am not satisfied that the additional floor space proposed by the current application will preserve the environmental amenity of neighbouring properties, in particular the property at 1 Princess Street, and to a lesser extent 583 Old South Head Road.
I am satisfied that the amendments to the development proposed by this development introduce greater and new impacts. These impacts arise from the new master bedrooms proposed at the attic level. In particular the master bedroom for Apartment 6 creates a new overlooking impact to the rear yard of 1 Princess Street. This is discernible by a comparison of the existing approval (Exhibit 2) and the plans for which development is sought (Exhibit A).
I am not satisfied that those views will be reliably obscured by the proposed planting, or that it is appropriate to rely on landscaping in the context of an objective that seeks to preserve the environmental amenity of neighbouring properties: Super Studio v Waverley Council [2004] NSWLEC 91 at [5-7].
I accept the evidence of Ms McCabe that on an oblique view from the rear yard at 1 Princess Street the proposed development will provide overlooking and bulk that does not exist with the current approval. This potential was readily observable on the onsite view.
Further I note that the experts agree that the development proposed will result in additional impact on the solar access to the north facing windows of apartments in 583 Old South Head Road when compared with the current approval.
On the basis of the preceding I am not satisfied that the written request has adequately addressed that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of this proposal. I find that the applicant has not demonstrated that the objectives of the development standard are not achieved by the proposal (refer paragraph [25]).
In the circumstances of this case I am satisfied that compliance with the development standard is both necessary and reasonable as it serves to achieve the objectives of the standard and thereby a better outcome for and from development.

Orders

The Court orders that: 1. The appeal is dismissed. 2. Development application DA-410/2017 for alterations and additions to an approved residential flat building at 585 Old South Head Road, Rose Bay is refused. 3. The exhibits are returned with the exception of Exhibits 1, C and D. ………………………. D M Dickson 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. Decision last updated: 19 December 2018

(2007) 156 LGERA 446

At a glance

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Judgment (9 paragraphs)

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