COMMISSIONER: This appeal has been lodged in response to the deemed refusal by Randwick Council of consent for a four storey residential flat development over basement car parking. The development is proposed at 48 Dudley Street, Coogee.
In this matter, at a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the 'LEC Act') was unable to reached to resolve the dispute in a manner that was acceptable to the parties. The conciliation was terminated on this basis.
Following the termination of the conciliation the applicant made amendments to the proposed development. The applicant was granted leave by the Court to rely on amended plans and documentation in March 2017.
At the commencement of the proceedings the applicant sought and was granted leave, for a further set of amended plans that reflected the following changes to the proposal:
1. an increase to the setback of the car lift to Mount Street;
2. the addition of glass inserts to the dividing wall of the car lift and the fire egress stair;
3. replacement of the fire egress door with a glazed door; and
4. the deletion of motorcycle spaces to accommodate an addition car space in the basement.
The Council maintains the application should be refused for the following reasons:
1. the proposal is considered to respond poorly to its context and the neighbourhood character. Specifically Council argues that the applications visual bulk, reduced setbacks and substandard landscape outcome make it unacceptable;
2. the proposed development exceeds Council's floor space ratio controls, and is excessive and inconsistent with the bulk and scale of surrounding residential development. Council argues that the request to vary the control does not adequately demonstrate that compliance is unreasonable or unnecessary;
3. the proposed development exceeds the maximum building height in Council's controls and Council argues the variation request does not adequately demonstrate that the variation is a better environmental outcome;
4. the proposal has insufficient setbacks from the primary and secondary street frontages, which is in contrast to the building setbacks in both streets that display a high degree of continuity;
5. the proposed vehicular access to the basement which services the development is unsatisfactory. Council argues the car lift provides insufficient space onsite for vehicles to queuing and creates a potential pedestrian and vehicle hazard;
6. insufficient deep soil planting and landscaped area is provided within the proposed development and will result in a poor landscaping outcome for the site; and
7. the proposal provides no communal open space which results in a substandard level of amenity for the new residents.
At the commencement of the hearing the Court heard evidence from a number of residents. The oral evidence from residents, and the submissions received during the notification of the applications, support the matters raised by the Council, and emphasise the following:
1. the size of the proposed development will cause an unsustainable increase in traffic and an increase in demand for on street parking;
2. the current car lift design, that has no driveway, poses an unacceptable level of risk to the safety of drivers and pedestrians;
3. the development will cause the removal of the leafy green outlook currently experienced by adjoining neighbours, and impact their solar access;
4. the development exceeds the allowable floor space and height and the residents do not accept that variation should be agreed to given the impacts of the development; and
5. Concern that the level of landscaping proposed by the development is inadequate in area and in sufficient to screen the development.
[2]
The site and its context
The site comprises a single lot described as Lot 3 DP 454077, with a street address of 48 Dudley Street, Coogee. The subject site is located at the south east corner of the intersection of Dudley Street and Mount Street, Coogee. The dwelling that occupied the site has recently been demolished and the site has been cleared.
The locality has a number of newly constructed developments, including a new four storey residential building adjacent the site to the south (131 Mount Street).
The subject site is identified in the following aerial map:
Relevant to the evidence, the siting, height, bulk and scale of 118 Mount Street on the opposite corner of the intersection and 131 Mount Street adjacent the site are relied on by the applicant.
[3]
Planning Controls:
Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 ('the Act') requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made and the public interest.
In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate had been submitted with the original development application, and the relevant requirements incorporated in the proposal. No updated BASIX certificate reflecting the amended plans has been provided to the Court. If the conclusion of the Court's assessment is that the application warrants approval, an updated BASIX certificate would be required prior to consent (cl 50(1B) of the Environmental Planning and Assessment Regulation 2000).
In accordance with the requirements of State Environmental Planning Policy 65: Design Quality of Residential Apartment Development ('SEPP 65'), and as required by the Environmental Planning and Assessment Regulation 2000, a design verification statement was lodged by Brenchley Architect's registered architect Julian Brenchley (6246).
The Council contends that the application fails to pay adequate regard to the following design quality principles under SEPP 65.
"Principle 1: Context and neighbourhood character
Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions.
Responding to context involves identifying the desirable elements of an area's existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood.
Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change.
Principle 2: Built form and scale
Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings.
Good design also achieves an appropriate built form for a site and the building's purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements.
Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.
Principle 5: Landscape
Good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in attractive developments with good amenity. A positive image and contextual fit of well designed developments is achieved by contributing to the landscape character of the streetscape and neighbourhood.
Good landscape design enhances the development's environmental performance by retaining positive natural features which contribute to the local context, co-ordinating water and soil management, solar access, micro-climate, tree canopy, habitat values and preserving green networks.
Good landscape design optimises useability, privacy and opportunities for social interaction, equitable access, respect for neighbours' amenity and provides for practical establishment and long term management."
Randwick Local Environmental Plan 2012 ('LEP 2012') applies to the site. Pursuant to LEP 2012 the site is zoned R3 Medium Density Residential. The objectives of the R3 zone are as follows:
"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.
To recognise desirable elements of the existing streetscape and built form, or in precincts undergoing transition, that contribute to the desired future character of the area.
To protect the amenity of residents.
To encourage housing affordability.
To enable small-scale business uses in existing commercial buildings."
Development for the purposes of a residential flat building is permissible with consent in the R3 zone.
Pursuant to cl 4.3 Height of Buildings, the maximum height for buildings on the site is 12m. The proposal has a maximum roof height of RL 69.00, with the lift overrun exceeding this height. Council contends that there is inadequate information to determine the exceedance of height about natural ground level as the survey information provides limited spot levels on the site.
The objectives of cl 4.3 Height of Buildings are:
"(a) to ensure that the size and scale of development is compatible with the desired future character of the locality,
(b) to ensure that development is compatible with the character and scale of contributory buildings in a conservation area or near a heritage item,
(c) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views."
The objectives relevant to the appeal are (a) and (c).
The following definition in the dictionary of LEP 2012 is relevant:
"building height (or height of building) means:
(a) in relation to the height of a building in metres - the vertical distance from ground level (existing) to the highest point of the building, or
(b) in relation to the RL of a building - the vertical distance from the Australian Height Datum to the highest point of the building,
including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like."
Pursuant to cl 4.4 Floor Space Ratio (FSR), the maximum floor space for development on the site is 0.9:1. The proposal seeks a maximum FSR of 1.27:1.
The objectives of cl 4.4: Floor Space Ratio are:
"(a) to ensure that the size and scale of development is compatible with the desired future character of the locality,
(b) to ensure that buildings are well articulated and respond to environmental and energy needs,
(c) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item,
(d) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views."
LEP 2012, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances.
However, development consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3), namely:
"(a) 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."
Whether the Court accepts the applicant's clause 4.6 variation requests in relation to the variation of the maximum height and FSR of the development are jurisdictional preconditions to consent.
The Randwick Development Control Plan 2012, ('DCP 2012') applies to the proposal. The clauses of DCP 2012 relevant to the appeal are:
1. Clause 2.2: Landscaped open space and deep soil:
"Objectives:
- to provide landscaped open space of sufficient size to enable the space to be used for recreational activities, or be capable of growing substantial vegetation.
- to reduce impermeable surface cover including hard paving.
- to improve stormwater quality and reduce quantity.
- to improve the amenity of open space with landscape design."
Clause 2.2.1 Landscaped open space:
"Controls:
(i) a minimum of 50% of the site area is to be landscaped (see clause iii below)
…
iii) The following items are considered to constitute landscaped open space:
(a) "Landscaped area" as defined in RLEP (including areas of deep soil planting)
(b) Outdoor recreation areas including communal open space (not located on the roof)
(c) Unroofed swimming pools
(d) Clothes drying areas
(e) Barbecue areas and ancillary structures
(f) Footpaths
(g) Landscaped podium areas (not more than 1.5m above ground level existing) and water tanks at ground level
(h) Paved areas
(i) Areas covered by shading structures that are located at ground level and substantially open on the side elevations without wall enclosure, such as cabanas, pergolas, canopies and the like but excluding verandas, balconies and decks (see clause iv) below.
iv) Landscaped open space area excludes:
(a) Areas used for parking
(b) Driveways
(c) Balconies
(d) Rooftop gardens
(e) Areas used for garbage or recycling material
(f) Areas occupied by storage sheds and the like"
Clause 2.2.2 Deep soil:
"i) A minimum of 25% of the site area should incorporate deep soil areas sufficient in size and dimensions to accommodate trees and significant planting.
Note: The deep soil area is counted towards the required landscaped open space area
ii) Deep soil areas must be located at ground level, be permeable, capable for the growth of vegetation and large trees and must not be built upon, occupied by spa or swimming pools or covered by impervious surfaces such as concrete, decks, terraces, outbuildings, or other structures.
iii) Deep soil areas are to have soft landscaping comprising a variety of trees, shrubs and understorey planting (refer to Part B section on Landscaping).
iv) Deep soil areas cannot be located on structures or facilities such as basements, retaining walls, floor slabs, rainwater tanks or in planter boxes.
v) Deep soil zones shall be contiguous with the deep soil zones of adjacent properties."
1. Clause 3.4 Setbacks:
"Objectives:
- To define the street edge and establish or maintain consistent rhythm of street setbacks and front gardens that contributes to the local character.
- To ensure adequate separation between buildings for visual and acoustic privacy, solar access, air circulation and views.
- To reserve contiguous areas for the retention or creation of open space and deep soil planting.
Controls:
i) The front setback on the primary and secondary property frontages must be consistent with the prevailing setback line along the street. Notwithstanding the above, the front setback generally must be no less than 3m in all circumstances to allow for suitable landscaped areas to building entries.
ii) Where a development is proposed in an area identified as being under transition in the site analysis, the front setback will be determined on a merit basis.
iii) The front setback areas must be free of structures, such as swimming pools, above4ground rainwater tanks and outbuildings.
iv) The entire front setback must incorporate landscape planting, with the exception of driveways and pathways."
1. Clause 4.4 External Wall Height:
"Definition:
"Wall height" is the vertical distance as measured from the ground level (existing) to the topmost point of an external wall. The topmost point of an external wall is taken to be the underside of the eaves or the highest point of a parapet, and excludes gable ends and clerestory windows. For skillion or butterfly roofs, the highest point of the external wall is measured to the underside of the eave of the lower end of the roof. For dormer windows that protrude horizontally from the roof by 2m or more, external wall height is measured to the underside of the dormer eaves.
Objectives:
- To ensure that the building form provides for interesting roof forms and is compatible with the streetscape.
- To ensure ceiling heights for all habitable rooms promote light and quality interior spaces.
- To control the bulk and scale of development and minimise the impacts on the neighbouring properties in terms of overshadowing, privacy and visual amenity.
Controls:
i) Where the site is subject to a 12m building height limit under the LEP, a maximum external wall height of 10.5m applies.
…"
The DCP provisions are a mandatory consideration and a focal point of the assessment of the application (see Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167). However, s 79C(3A) of the Act mandates a flexible application of the controls where the alternative solution is capable of meeting the required standards (Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151).
[4]
Expert Evidence
In line with the issues in dispute in the proceedings the parties engaged experts in traffic engineering and town planning.
The experts for the applicant were:
1. Mr Robert Varga - Traffic Engineering;
2. Mr Anthony Betros - Town Planning.
The experts for the Council were:
1. Mr Craig McLaren - Traffic Engineering;
2. Mr Jeff Mead - Town Planning;
Joint expert reports were prepared and filed in each of the disciplines. I have read and considered those reports.
[5]
The issues
The fundamental issues for determination in this appeal are:
1. Whether the variations in height and floor space sought by the proposed development are well founded and worthy of support; and
2. Whether the traffic and parking demands arising from the development are managed in a safe and satisfactory manner.
[6]
Are the variations to height and floor space well founded and worthy of support?
It is clear from a reading of cl. 4.6 of LEP 2012 that the onus is on the applicant to meet the tests of cl 4.6 in seeking flexibility to the height or FSR standards by demonstrating that the breaches of the development standards are justified. In this matter the applicant relies on two variation requests for floor space and for height.
In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Preston CJ outlines that Commissioners, in exercising the functions of the consent authority on appeal, have the power to grant consent to developments that contravene the building height standard, or the FSR standard (cl 4.6(2)). However they cannot grant such a development consent unless they:
1. are satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)).
2. are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)).
3. have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with they are satisfied that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)).
4. have considered a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).
I have applied these tests to the current application in the following.
[7]
Consistency with the zone objectives:
On the basis of the evidence of the planning experts, and the variation request (Exhibit 4), I accept that it can be reasonably argued that the proposed development is consistent with the objectives of the zone in that it will provide for the housing needs of the community and assist in achieving a variety of housing types within a medium density residential environment.
I note that in relation to the following objective of the R3 zone (extracted below) that at this point I am not required to be satisfied that the development is compatible with the streetscape or character, only that it is not antipathetic to it (see Schaffer Corp Ltd v Hawkesbury City Council (1992) 77 LGERA 21, at page 27). The objective of the R3 zone is:
"- to recognise the desirable elements of the existing streetscape and built form, or in precincts undergoing transition, that contribute to the desired future character."
Pursuant to clause 4.6 (4)(a)(ii), I find the proposed development is not inconsistent with the zone objectives.
[8]
Consistency with the objectives of the standard in question:
At [18], I listed the objectives of cl 4.3: Building Height and that in the circumstances of this case, objectives (a) and (c) are the most relevant:
"(a) to ensure that the size and scale of development is compatible with the desired future character of the locality,
…
(c) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views."
Council contends that the variation to the building height is inconsistent with the height standard objectives as the proposal is incompatible with the desired future character and has adverse impacts on neighbouring properties.
Council argues that the:
"…height of the proposed building exceeds the height of neighbouring properties, including recently approved development at 131 Mount Street, Coogee. In combination with the external wall height noncompliance, substantial floor space ratio breach and non-compliant setbacks the size and scale of the development is incompatible with the character of the locality." (Exhibit 1).
In addition Council argues that the proposed exceedance of height adversely impacts on the amenity of neighbouring land to the south in terms of overshadowing (52 Dudley Street).
Mr Betros argues that the proposed height of the building is compliant, as viewed from the respective street frontages, except for the roof slab and the lift over run. It is his evidence that such height exceedances are indiscernible and has no adverse streetscape or amenity impacts (Exhibit 4). The relevant clause 4.6 variation nominates the height exceedance as follows:
"The proposed maximum height of 15.5m seeks a variation to development standard within clause 4.3 of the Randwick LEP 2012- maximum height of 12m. If measured from the footpath level and the ground level within the northern and western areas of the site, the height is 12.4m to the roof slab.
The maximum variation sought is for the south-eastern portion of the building and it is critical to note that the extent of variation is due to the already excavated nature of the site below the street level and not below the ground floor outdoor area around the existing dwelling on the western and northern sides. These coincide with the street facing elevations whereby the height presented to the streetscapes of Dudley and Mount Streets is virtually compliant and is 3-4 storeys which is consistent with the intent of the 10.5m wall height and 12m overall height limit"
(Exhibit 4)
In the submitted clause 4.6 variation request, Mr Betros also provides the following analysis of the proposal against the objectives of the height standard:
The proposed 3-4 storey presentation will have a compatible streetscape outcome, especially as it is perceived alongside the recently completed 3-4 storey scale building at 131 Mount Street;
the proposed siting, height, bulk and scale is appropriate as the development is located on a corner site. Mr Betros relies on comparable Council approvals for corner sites where he argues Council has allowed setback and height variations in recognition of and to provide emphasis to the corner.
that the increase in height does not produce unreasonable bulk when viewed from adjoining properties. Mr Betros concludes:
"In response to the contention regarding visual bulk, it is emphasised that the part 3, part 4 storey scale of development is consistent with that contemplated by the 10.5m wall height and the 12-metre overall height control. The eastern side setback is beyond that required by the DCP whilst the separation distance to the southern neighbour is also beyond that anticipated by the DCP due to the compliant rear setback combined with the presence of the right of way driveway which serves the eastern neighbouring flat buildings. The abundant landscaped areas around the built form provide for an appropriate visual bulk outcome which is consistent with that contemplated by the controls. The 3-storey with recessed 4th storey is consistent with the controls whilst the combination of articulation, variety of materials and landscaping ensure that the visual bulk of the proposal is compliant and appropriate for the site"
(Exhibit 4).
Mr Betros concludes that the additional housing associated with the increase in height, above the standard, is a better planning outcome due to:
1. the high level of internal amenity achieved for the apartments;
2. no adverse streetscape impacts; and
3. no adverse external amenity impacts.
In the alternative Mr Mead argues that the applicant has failed to provide sufficient information to determine the extent of the proposals non-compliance with height. He argues that the non-compliance can only be determined by a "height blanket" which reflects the building form relative to the site levels that exist. Mr Mead concludes:
"… the depiction of height compliance in the architectural plans is not clear and in my opinion is not accurate. The height lines are shown as "flat" lines taken parallel to the proposed ground floor slab. The Clause 4.6 Statement by AB [Mr Betros] refers to the height as taken above footpath level (that is then extrapolated as the "flat" line shown on the elevations and sections). Taking the ground level at the street frontage and projecting that as a height line is not usual practice and is not consistent with what is required by the LEP definition."
(Exhibit A)
In relation to the merits of the height variation sought Mr Mead agrees that the overshadowing impacts to the adjoining neighbours are acceptable in terms of meeting the relevant DCP controls.
It is Mr Meads evidence that "the additional height presents a building that is higher than both immediate neighbours and the additional height beyond the control obviously adds to the building bulk." It is Mr Mead's conclusion that the proposed development fails to meet the objectives of the height control in relation to: "ensuring that the size and scale of development is compatible with the desired future character of the locality" and "to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk." (Exhibit 4)
In his oral evidence Mr Mead agreed that the desired future character (as referenced in the objectives of the height standard) is informed by the planning controls and how that has been interpreted in the locality in response to the circumstances of the site. His reasoning can be summarised as follows:
1. The emphasis of the height objective is on the desired future character, which may in fact be a different character to what exists currently.
2. Therefore in assessing compatibility it is important to give weight to the desired future character which is established by looking at the suite of planning controls in both LEP 2012 and DCP 2012.
3. He argues that the applicant places a disproportionate weight on the building form of developments at 118 Mount Street and 131 Mount Street in seeking to justify the variations sought.
In response to Mr Mead's evidence in regard to desired future character, Mr Betros relies on a number of approvals in the vicinity of the site which provide a recessed fourth storey in exceedance of the controls. It is his evidence that this form of building, recently approved by the Council, should inform the determination of whether the proposal is compatible with the desired future character. In particular he refers in his variation request to a number of approvals which he argues demonstrates that Council has applied a reduced setback to corner locations (Exhibit 4).
[9]
Findings
Relevantly at [35] in Bettar v Council of the City of Sydney, Commissioner O'Neil states:
[35] As building height is defined in LEP 2012 as the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like, it is essential to nominate an existing ground level in order to be able to determine the height of the building. This is usually achieved by taking the lowest level on an existing site, as shown on the site survey, directly beneath the highest part of the proposed development, to determine a maximum building height dimension.
[36] ….the particular difficulty in applying this definition to this site is that the existing building occupies the whole of the site area and so there is no 'ground' (as in soil/garden/paving) around the building and on the site, from which the existing ground level can be determined by a site survey.
[37] It is relevant to consider the objectives of the building height development standard in considering how best to determine the maximum height of the building using the dictionary definitions in LEP 2012. The objectives include, at cl 4.3(a) of LEP 2012, to ensure the height of development is appropriate to the condition of the site and its context. As one of the purposes of the development standard is to relate the proposal to its context, it follows that the determination of the existing ground level should bear some relationship to the overall topography that includes the site.
When the reasoning of the above case is read in the context of the facts in these proceedings I accept the submission of Ms Duggan that Bettar v Council of the City of Sydney is not directly applicable. I find that it does not support the reasoning of Mr Betros that spot levels provided at the street are sufficient to determine maximum building height as defined in LEP 2012.
In these proceedings there are no facts that would preclude the applicant determining the lowest level on an existing site directly beneath the highest part of the proposed development, to determine a maximum building height dimension. In Bettar v Council of the City of Sydney the levels at the street/footpath were taken due to the fact that a building occupied the full extent of the land. This is not the case in these proceedings. I note at paragraph [37] Commissioner O'Neil recognises "that the determination of the existing ground level should bear some relationship to the overall topography that includes the site." Given the fall across the land it is not sufficient to only determine the maximum height of the building at the street (refer Exhibit 4, Appendix 1).
I am not satisfied that the applicant has provided sufficient evidence or analysis to properly determine the extent of the variation in accordance with the definition of building height (refer paragraph [19]).
Notwithstanding the above, evidence was adduced during the proceedings that concluded that the maximum height of the building is around 15.5m above natural ground level (a variation of 3.5m). On the basis of that evidence and the site inspection I am satisfied I am capable of making an assessment of the merit of the variation request.
In considering the different evidence on consistency with the height standard objectives, I accept the evidence of Mr Mead. In summary, I agree that:
1. The applicant places undue weight on 118 Mount Street as a precedent for development of the subject site.
2. An urban design approach that places emphasis on defining the corner of a street block rarely involves the whole building. Often street corners are emphasised by giving visual prominence to parts of the building facade, such as a change in building articulation, material or colour, roof expression or height. This approach has not been taken in this development. Notwithstanding there are also no such controls apparent in Randwick Council's planning controls.
3. The wall height control in DCP 2013 [paragraph 25(3)] in conjunction with the building height control in LEP 2012 emphasise that the Council is seeking a building form that provides for interesting roof forms and is compatible with the streetscape. Given this objective, it is possible to deduce that the wall height control is intentionally lower than the maximum overall height to facilitate this. Read together, it is clear that the intent of the controls is to minimise the extent and visual impact of any fourth storey and to allow for roof articulation. I find that this intent has not been achieved by the proposal.
4. I find that the height exceedance is exacerbated by the extent of the upper level, the overall volume of the building and its placement on the site at limited setback to Dudley and Mount Street. These factors result in an overbearing building as experienced from the public domain. I do not accept the evidence of Mr Betros that the height variation will be indiscernible.
5. the height proposed by the applicant is not characteristic of the existing built environment in the vicinity of the site. The height proposed exceeds the height of the recently approved development at 131 Mount Street, and the adjoining flat building at 52 Dudley Street.
6. I accept the submission of Ms Duggan that 118 Mount Street was approved under an earlier set of planning controls. Given the emphasis in the objective of the height control on ensuring the size and scale of development is compatible with the desired future character of the locality I have given the form of 118 Mount Street less weight in my assessment.
I am satisfied that the non-complaint building height results in a poor streetscape outcome and is not compatible with the desired future character of the locality.
However, I do not accept that Council's contention that the development adversely impacts on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views is demonstrated by the evidence.
For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find the proposed development is not consistent with objective (a) of the height standard. In forming this conclusion I note that a consideration of consistency with the objectives of the standard, required under cl4.6(4)(a)(ii), and a determination that non-compliance with the standard would be in the public interest is different to the consideration of achievement of the objectives of the standard under cl 4.6.(3)(a) where the applicant is required to demonstrate the objectives are achieved, despite non-compliance (see Moskovich v Waverley Council [2016] NSWLEC 1015 at [54]).
[10]
Is it established that compliance is unreasonable or unnecessary?
Wehbe v Pittwater Council [2007] NSWLEC 827 at [44]-[48] detailed a number of approaches which may establish that compliance with a development standard is unreasonable or unnecessary for the purposes of cl 4.6(3)(a). Namely that: the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); the underlying objective or purpose of the standard is not relevant to the development (Wehbe test 2); that the objective would be thwarted if compliance was required (Wehbe test 3); that the development has virtually bee abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or that the zoning of the land is unreasonable or inappropriate.
In this appeal the applicant has utilised the Wehbe test 1, namely that compliance is unreasonable or unnecessary because the development proposal complies with the objectives of the standard and the zone.
Given my findings at paragraph [62] that the development proposed does not comply with objective (a) of the height standard I find that I cannot be satisfied that the applicant's written request adequately demonstrates the matters in clause 4.6(3)(a) of the LEP and it is not necessary to determine if there are sufficient environmental planning grounds to justify the variation.
Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) and consequently there is no power to grant consent to the development application which does not comply with the height control in cl 4.3 of the LEP and the application must fail.
[11]
Other contentions
Having found that the height standard should not be varied the development application must be refused. Consequently, it is not necessary to deal with the other contentions in the proceedings.
[12]
Costs
As noted at [4] at the commencement of the proceedings leave was granted for the applicant to rely on a further amended set of plans that sought to address the issues and contentions raised by the Council and the experts through the joint conferencing process.
Section 97B of the Act relevantly provides:
"97B Costs payable if amended development application filed
(1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment).
(2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application."
In Cachia v Manly Council (No 2) [2009] NSWLEC 1107, Moore SC (as his Honour then was) pointed out that for s 97B to be of effect, two steps are necessary:
"Firstly, that the Court allows the applicant to file an amended development application.
Secondly, that the amended development application not constitute 'a minor amendment'."
In Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153; [2009] NSWLEC 153, Pepper J (at [42]) articulates the principles that may assist in determining whether amendments are minor, as follows:
"(a) first, the question of what is 'minor' is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]);
(b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]);
(c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]);
(d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]);
(e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]);
(f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor;
(g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and
(h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17])."
The relevant design changes in these proceedings are outlined at [4]. I find that the changes in these proceedings are appropriately classified as minor.
In Marinkovic v Rockdale City Council (2007) LGERA 385; [2007] NSWLEC 71 ('Marinkovic'), Preston CJ considered at [22] the reasonableness of amendments by an applicant during a Class 1 proceeding and states:
"22 There should be a capacity for an applicant in class 1 proceedings before the Court to amend its application to respond to evidence, including evidence of a court appointed expert, and to address concerns of the court that is hearing the appeal. A respondent council should expect that an applicant might need to respond in this way. That is to say, such amendments should be seen to be part of the usual process of conducting a class 1 appeal in this Court. The mere making of an amendment is not by itself a circumstance that always makes it fair and reasonable to make an order for costs.
23 Of course, there must be some limit placed upon this capacity to respond to evidence and to the Court's concerns by means of an amendment."
In these proceedings I find that the amendments proposed by the applicant are minor, and are consistent with what is stated in Marinkovic at [22] as being part of the Class 1 appeal process. They have not resulted in the Council having costs thrown away as a result of the changes. As such I propose no order as to costs.
[13]
Orders:
The orders of the Court are:
1. The applicant is granted leave to rely on amended plans;
2. No order as to costs;
3. The objections pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 are not sustained;
4. The appeal is dismissed;
5. Development application DA 455/2016 for a four storey residential flat development over basement car parking at 48 Dudley Street, Coogee is refused.
6. The exhibits are returned with the exception of Exhibits 1, A, and B.
…………….
D M Dickson
Commissioner of the Court
[14]
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: 17 November 2017
In relation to the applicants emphasis on the site as a corner location, Mr Mead concludes that the neither the Council's front setback control nor height control differentiate corner sites from other sites. He emphasises that there are no additional specific corner site provisions in the planning controls. Mr Mead maintains his conclusion that the visual bulk of the proposal is detrimental in the streetscape for the following reasons:
1. In relation to the design and extent of the upper level, it is Mr Mead's assessment that the upper level will be highly visible from Mount and Dudley Streets due to the size of its floor plate, and its limited setback;
2. the reduced setback to Mount and Dudley Streets brings the overall building form forward in the streetscape, resulting in a more dominant presentation. It is his conclusion that the setbacks proposed do not meet the objective of the control to be consistent with the prevailing setback of the along the street; and
3. the limited landscaping provided by the proposal, in particular deep soil landscaping, does not allow for planting which would contribute to a positive streetscape experience and soften the building.
Mr McEwen submits that in assessing the height variation request it is relevant to have regard to the circumstances of the site. In his submission, that involves consideration of where the height exceedance would be visible, whether it is compatible with the streetscape and whether or not it impacts on the amenity of adjoining land. He argues that the desired future character must be informed by the existing buildings, and it is appropriate to give weight to how Council has applied those controls in recent approvals.
In relation to the treatment of the site as a corner element, in oral submissions Mr McEwen argues:
"It's plain that the Council has in the past assessed corner buildings in a different way to which other buildings are assessed. You will recall the quote in respect of 118 Mount Street from the council officer's report, which relates to the fact, it being a corner building, one might expect it to come forward as a corner structure. To the extent that that might make more dominant the form of the building does not mean that it increases the visual bulk beyond that which should have been anticipated because plainly part of the desired character, whether it be present or future, is that corner buildings be permitted to stand forward of neighbouring buildings."
(Transcript page 83)
It is Mr McEwen's submission that from a view in either Dudley or Mount Street the proposed building will appear to be compliant. He argues that there is no evidence in the case that establishes the streetscape or amenity would be improved by a compliant building.
In relation to the issue raised by the Council about the determination of the natural ground level Mr McEwen relies on Bettar v Council of the City of Sydney [2014] NSWLEC 1070 ('Bettar v Council of the City of Sydney') at [41]. He argues the reasoning in this case supports the approach taken by Mr Betros in analysing the maximum height exceedance at the street frontage.
Ms Duggan submits that the decision in Bettar v Council of the City of Sydney does not apply as the circumstances in this case are distinct. Ms Duggan submits the lack of specificity about the height variation does not arise from a lack of ability to determine natural ground level as it did in Bettar v Council of the City of Sydney. She argues that in this case it arises from a lack of spot levels taken by the surveyor in preparing the survey.
It is Ms Duggan's submission that the Court is unable to make a proper assessment of the application under cl 4.6 of LEP 2012 as there is no clear evidence of the extent of the variation. She argues that without clarity of the extent of the variation the Court is incapable of making an assessment as to the effect of that variation, or an assessment of the compliance with the objectives of the standard (Transcript page 91).
In relation to the existing approvals detailed by Mr Betros in his variation request it is Ms Duggan's submission that in the approvals nominated no other building, apart from 118 Mount Street, exceeds the height control. She notes that 118 Mount Street was approved under a different planning regime. In her submission there is no evidence to demonstrate the height proposed by the application is characteristic.