Thiessen Architects v Willoughby City Council

APPLICANT Mr P McEwen SC with Mr M Staunton, barrister SOLICITORS Bartier Perry LEGAL REPRESENTATIVES: RESPONDENT Mr M Craig QC SOLICITORS Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10303 of 2007 Thiessen Architects Pty Ltd v Willoughby City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application 2006/896 by Willoughby City Council (the council) for alterations and additions to an existing industrial building at 356A - 360 Eastern Valley Way, East Chatswood (the site). The site and surrounding area 2 The site is Lot 1 in DP 1076020. It is rectangular in shape with a frontage of 55.45 m to Eastern Valley Way, side boundaries of 127 m to 128 m and a site area of 6750 sq m.

3 The site contains a multi-use industrial building of two and three storey construction with external and undercover car parking. The site has a fall of some 7 m from the rear to the street frontage.

4 The area is characterised by buildings accommodating light industrial uses and other users such as a church, gymnasium and service station. Open space and public recreation facilities are located on the opposite side of Eastern Valley Way.

The proposal 5 The proposal provides for alterations and additions to the existing industrial building. The development application describes the proposal as providing 9433.1 sq m of floor area being made up of: o 6657.3 sq m of factory floor area, o 1200.8 sq m of showroom floor area, and o 1575 sq m of office floor area. 6 Units 5 and 6 in Building 3 at the rear of the site are to remain unchanged. Building 2 (the central building) is to maintain its original external form but with the construction of a new suspended slab internal to the building. The area will contain industrial floor space and car parking. The existing basement car parking is to be retained in Building 2.

7 Building 1 is located at the Eastern Valley Way frontage. The new suspended slab from Building 2 is to be continued into Building 1 and will contain industrial floor space and car parking, as will as will the existing slab that extends from Building 2 into Building 1. A further 5 levels (Levels 4 - 8) of floor space are to be constructed above Building 1 with an increased setback from Eastern Valley Way. A plant room is located on a further level but is smaller in area and set further back from the lower 9 levels (Ground level - Level 8).

8 The proposal provides for 178 car parking spaces although this figure was marginally reduced following further consideration by the council and applicant traffic experts on access to some loading docks. Relevant planning controls 9 The site is within Zone 4(b) - Light Industrial Zone under Willoughby Local Environmental Plan 1995 (LEP 1995). Clause 5 provides the following relevant definitions:

floor space ratio of a site means the ratio of the total gross floor area of all buildings on the site to the total area of the site zoned for the purpose for which the building or buildings may be erected, exclusive of the area of any existing or proposed access handle. gross floor area means the sum of the areas of each floor of a building where the area of each floor is taken to be the area within the outer face of the external enclosing walls as measured at a height of 1400 millimetres above each floor level, excluding:

(a) columns, fin walls, sun control devices, awnings and any other elements, projections or works outside the general lines of the outer face of the external wall, and (b) lift towers, cooling towers, machinery and plant rooms, ancillary storage space and air-conditioning ducts, and (c) car parking needed to meet any requirements of the consent authority and any internal designated vehicular or pedestrian access to that parking, and (d) space for the loading and unloading of goods.

10 Clause 5 also adopts the Model Provisions. The following definitions are relevant: Light industry means an industry, not being offensive or hazardous industry, in which the process carried on, the transportation involved or the machinery or materials used do not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, ash, dust, waste water, waste products, grit, oil, or otherwise. 11 Industry means: (a) any manufacturing process within the meaning of Factories, Shops and Industries Act 1962 or; (b) the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business, but does not include extractive industry 12 Clause 13(3) provides: (3) Except as otherwise provided by this plan, the Council shall not consent to development on land to which this plan applies unless the Council is of the opinion that the development is consistent with one or more of the aims of this plan and at least one specific objective of the zone within which the development is proposed to be carried out. 13 Part 4 of LEP 1995 provides requirements for industrial areas. Clause 42 provides General Objectives for industrial zones. These are: (a) To accommodate industrial development which produces a range of goods and services and provides employment, without adversely affecting the amenity, health or safety of nearby residents in adjacent areas, and (b) To enable industrial development which does not pollute or adversely affect adjoining land or water, and (c) To allow only those shops and services which serve the daily convenience needs of the workforce of the industrial areas. 14 Clause 42B addresses the 4(b) zone. The clause states: (1) Specific Objective To accommodate a variety of light industrial uses. (2) Development Within the Zone (a) Within the 4 (b) Light Industrial Zone, the following development may be carried out without development consent: exempt development (b) Within the 4 (b) Light Industrial Zone, the following development may only be carried out with development consent: Demolition Development for the purpose of: advertisements banks brothels bulky goods salesrooms or showrooms to which the provisions of Clause 44 apply carparking car repair stations child care centres community facilities drainage dwellings used in conjunction with and attached to a building used for a permitted light industry or warehouse film and television production facilities light industry motor showrooms newsagencies pharmacies or chemist shops places of public worship recreation areas recreation facilities roads service stations take-away food shops including milk bars, hot food bars and sandwich shops, but excluding drive-in take-away food shops utility installations veterinary hospitals warehouses (c) Within the 4 (b) Light Industrial Zone, any other development is prohibited. 15 Clause 43(1A)(b) provides that for a site over 1000 sq m in area and located within the East Chatswood Industrial Area, the floor space ratio (FSR) will not exceed 1.5: 1. Clause 43(2A) provides that consent shall not be granted to the erection or use of a building for the purpose of an office or showrooms unless the office or showrooms is ancillary to the industrial use (cl 43(2A)(a)) and is not more than 30% of the net floor area of all buildings on the site (cl 43(2A)(b)).

16 Draft Willoughby Local Environmental Plan 1995 - Amendment 60 (Amendment 60) also applies. Amendment 60 amends LEP 1995 in a number of areas but relevantly replaces the General Objectives for industrial zones, adds "laboratories" as a permissible use in the 4(b) zone, adds objectives for FSR controls (cl 13E) and replaces cl 43. The relevant change to cl 43 is an increase in the amount of net floor area of all buildings on the site that can be used for an office or showroom from 30% to 50% (cl 43(3)(b)).

17 The evidence indicated that Amendment 60 has been advertised, adopted by the council and referred to the Department of Planning for gazettal some 12 months ago although the date of gazettal is not known. 18 Willoughby Development Control Plan (the DCP) also applies. Section C 3 Sustainable Development, Section C.4 - Transport Requirements for Development General Development Guidelines and Section F - Development in Industrial zones are relevant. The issues 19 The council's Statement of Facts and Contentions identifies 6 areas of dispute that cannot be addressed through conditions of consent. However, following further discussion between the parties the matter of the adequacy of the loading facilities was not pressed by the council. The outstanding areas of dispute relate to: 1) whether the height, bulk, scale and landscaping of the building is acceptable, 2) whether the proposal is in conflict with the General Objectives for industrial areas in that the proposal will potentially provide for office space rather than light industrial uses, and 3) whether excessive car parking is provided and if so whether the State Environmental Planning Policy No 1 - Development Standards (SEPP 1) objection is well founded. 20 Mr Garry Chapman, a town planner provided evidence for the council and Mr Andrew Smith, also a town planner provided evidence for the applicant. Height, bulk, scale and landscaping 21 Mr Chapman states that the height of the building at RL 93.87 m is not compatible with other buildings along Eastern Valley Way noting the recent development approval at 354 Eastern Valley Way at RL 81.5 m. The proposal would result in a building that is visually dominant on a major traffic route with a minimal front setback. While no height controls apply to this site the FSR control would generally result in a buildings of 2 to 4-storeys covering the majority of the site. This form of development ensures a building can accommodate industrial/warehouse land uses, loading facilities and car parking consistent with the zoning of the site.

22 Mr Chapman notes that the building provides a 4.7 m front setback and while this complies with the requirements of the DCP it is inconsistent with the objectives and performance criteria, in that adequate landscaping must be provided. Also, opportunities for additional landscape planting to improve the visual quality of the streetscape should be provided. The proposed setback does little to break the bulk of the building. He states a minimum 10 m setback should be provided from Eastern Valley Way. 23 Mr Smith notes that neither LEP 1995 nor the DCP provides any qualitative controls for height. Instead, the DCP sets out a number of objectives, performance criteria and controls in relation to building heights within industrial areas. In general terms, these requirements seek to ensure that the proposal is of sufficient high architectural quality and does not adversely impact on the surrounding area or on the amenity levels for the prospective occupants of the building.

24 The nearest residential location is to the east and is some distance away and across an open space area. The building also backs onto a 10 - 12 storey high embankment at Gibbes Street. In Mr Smith's opinion this will effectively screen the scale of the proposed building, as it will be blend into the appearance and scale of this embankment when viewed from the east.

25 The appearance from Eastern Valley Way will be limited because of the alignment of this road when travelling from the north and south. Further, the design of the building creates a distinct podium and tower appearance through the different setbacks with the lower podium element effectively defining the Eastern Valley Way frontage. In Mr Smith's opinion the bulk and scale of the tower element will be further broken up by its well articulated form and the enhanced landscaping buffer that satisfies the setback requirements in the DCP. 26 Mr Smith also states that the alterations and additions to the existing building is consistent with the sustainability principles in Section C 3 of the DCP as it represents the most sustainable development option. A cost assessment indicates that the cost of demolishing the two buildings and rebuilding would be approximately $1.3 million.

27 The issue of height (and the consequent issues of the bulk and scale) is not an issue that is easily addressed in the absence of any quantitative controls. For some guidance, Roseth SC in Veloshin v Randwick Council [2007] NSWLEC 428 makes the following comments in relation to height and bulk:

Planning Principle: assessment of height and bulk The appropriateness of a proposal's height and bulk is most usefully assessed against planning controls related to these attributes, such as maximum height, floor space ratio, site coverage and setbacks. The questions to be asked are: Are the impacts consistent with impacts that may be reasonably expected under the controls? For complying proposals this question relates to whether the massing has been distributed so as to reduce impacts, rather than to increase them. For non-complying proposals the question cannot be answered unless the difference between the impacts of a complying and a non-complying development is quantified. How does the proposal's height and bulk relate to the height and bulk desired under the relevant controls?

Where the planning controls are aimed at preserving the existing character of an area, additional questions to be asked are: Does the area have a predominant existing character and are the planning controls likely to maintain it? Does the proposal fit into the existing character of the area? Where the planning controls are aimed at creating a new character, the existing character is of less relevance. The controls then indicate the nature of the new character desired. The question to be asked is: Is the proposal consistent with the bulk and character intended by the planning controls? Where there is an absence of planning controls related to bulk and character, the assessment of a proposal should be based on whether the planning intent for the area appears to be the preservation of the existing character or the creation of a new one. In cases where even this question cannot be answered, reliance on subjective opinion cannot be avoided. The question then is: Does the proposal look appropriate in its context?

Note: the above questions are not exhaustive; other questions may also be asked.

The above principles are supplementary to, and consistent with, the principles established in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. 28 The comments of Roseth SC in Veloshin were not addressed by Mr Chapman or Mr Smith as the decision was handed down on 13 July 2007, the second day of the two-day hearing of this appeal however the comments in Veloshin provide a framework for the consideration of the evidence of Mr Chapman and Mr Smith. Because of the lack of a height control, the relevant question in Veloshin is: Does the proposal look appropriate in its context? 29 The absence of a numerical height control also does not eliminate the need to consider the more general considerations in s 79C(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act), particularly "the likely impacts of a development, including environmental impacts on both the natural and built environments… in the locality" (s 79C(1)(b)).

30 For the purposes of this issue and the question of compliance with the councils planning controls, I have adopted the position of the applicant that the proposal complies with the 1.5:1 1 FSR requirements in LEP 1995. It was not the position advocated by the Council. It was also agreed that the building satisfied the front setback requirements of the DCP although the council maintained that a greater setback should be provided because of the height of the building. There are no other council planning controls that impinge on the issue of height and bulk and scale.

31 Mr Smith, in cross-examination, accepted that the absence of a numerical height control did not provide the opportunity for a building of unlimited height. He states that some reliance must be placed on the FSR control and the surrounding context including the topography and existing built form although the latter should not be given any significant weight, as other development approvals do not necessarily provide "markers" for future development. 32 In considering the evidence of Mr Chapman and Mr Smith I am satisfied that the proposal is not appropriate in its context or in the locality for a number of reasons. Firstly, I do not accept that the topography of the site and surrounding area compensates or screens the height, bulk and scale of the proposed building. While the building will largely fall within the foreground of the buildings at the rear located on the embankment, I do not accept Mr Smith's evidence that it will be blend into the appearance and scale of this embankment when viewed from across the valley. The most relevant reference points for height are the adjoining and other buildings along Eastern Valley Way. In this context, the proposed building will be significantly higher than all existing buildings and over 12 m higher than the building recently approved at 354 Eastern Valley Way.

33 Secondly, I also do not accept that there will be limited viewing opportunities of the building when travelling in a northerly and southerly direction along Eastern Valley Way. In my view, the significant difference in height between the proposed building and existing buildings when combined with the minimal setback will be clearly noticeable along Eastern Valley Way and would likely draw attention to the proposed building and it's unacceptable contextual relationship. The submission that the industrial nature of the area somehow mandates a lower level of urban design than would be expected in other areas are without foundation and should be rejected. 34 Thirdly, an FSR of 1.5:1 in an industrial context would normally provide a form of development that would be a maximum of 3 or 4 storeys in height. The concentration of floor space in one part on the site is a circumstance that would not be readily envisaged in the formulation of planning controls, particularly for light industrial development where access for trucks and high ceilings heights for warehousing is generally required and multi level building forms are infrequent. In hindsight, a height or storey control in the DCP would have been a far simpler way of dealing with this issue. I note that Veloshin talks about the massing of a building and the need to distribute the mass so as to reduce impacts, rather than to increase them.

35 Fourthly, the reliance on the Sustainable Development provisions in the DCP by Mr Smith is valid however I do not accept that the requirements should be used to support a development that is unsatisfactory in other aspects. As submitted by Mr Craig QC, the existing structure could still be used for alterations and additions in support of the Sustainable Development provisions in the DCP but with a reduced height and consequent reduction in bulk when viewed from Eastern Valley Way. 36 Fifthly, the height and bulk are exacerbated by the setback to Eastern Valley Way and the inability to provide adequate landscaping for a building of the height proposed in this application. The existing setback (and as prescribed by the DCP) would this satisfactory for a building of 3 or 4 storeys in height however with the additional levels proposed I accept Mr Chapman's evidence that it is in adequate even taking into consideration the increased setback at the upper levels and the articulation of these levels.

37 For the reasons mentioned in the previous paragraphs, I find that in consideration of s 79C(1)(b) of the EPA Act, the building has an unacceptable visual impact on the built environment in the locality and consequently the appeal must fail.

38 For completeness I will briefly deal with the other issues. General Objectives for industrial areas 39 Mr Chapman states that the proposal does not meet zone objective (b) in that the ability to accommodate legitimate industrial uses which produce/ manufacture goods and services is questionable. In his opinion, the building form appears to provide office rather than industrial accommodation with the multi storey tower building on Eastern Valley Way more closely resembling an office building design. The units at the upper levels do not have convenient access to loading facilities used regularly by industrial premises associated with goods delivered or manufactured. These levels rely on goods/passenger lifts to move goods from the ground floor loading facilities over 8 levels and 28 units of the building.

40 The design will potentially discourage occupation of the upper levels of Building 1 by permissible industrial uses, noting light industrial uses should incorporate a manufacturing component or breaking up on dismantling of goods. This type of activity is commonly undertaken in buildings or units that have direct access to loading facilities to service the manufacturing process.

41 Mr Smith acknowledges that the General Objectives encourage the accommodation of industrial development that produce a range of goods and services and provides employment without adverse amenity, health and safety impacts on adjacent residential areas. He places some emphasis on "a variety of light industrial uses". In his opinion the proposal will provide a variety of spaces which will provide suitable accommodation for a variety of clean industrial uses, particularly high technology industries and users such as mechanical industries, clothing accessories, small parts servicing, small trade groups, home trade industries and small-business industries. The users will produce a range of goods and services and provide employment without adverse amenity impacts on adjacent land and residential areas.

42 In balancing the competing evidence of Mr Chapman and Mr Smith I am inclined to agree with the concerns expressed by Mr Chapman. Levels 4 to 8 of Building 1 will potentially limit occupation of many light industrial uses as access is only provided by two lifts each around 2.6 m x 2.6 m and the height between floors of 3.43 m (not including slab thickness, any air conditioning ducting or false ceilings) would potentially restrict storage and warehousing associated with some light industrial uses. The access and dimensions of this floor space would not however, in isolation be a reason to refuse the application.

43 In my view, the issue reaches an unacceptable level because of the amount of floor area contained on Levels 4 to 8. The architectural plans do not provide specific floor areas, however a conservative assessment of the floor areas of Levels 4 to 8 of Building 1 from the available dimensions indicate a total floor area of some 4250 sq m (excluding lifts and amenities). This needs to be compared to the 9433.1 sq m of floor area relied on by Mr Smith and the floor area of 9210 sq m used by Mr Chapman.

44 In my view, the amount of floor space limiting light industrial uses within the development is significant when considered as a proportion of the total floor space. In the absence of any evidence to suggest that there is a sufficient demand or alternatively there was a specific use or users identified to legally occupy this area for light industrial uses an approval should not be entertained. I accept that the opportunity should be provided for areas of the characteristics found in Levels 4 to 8 to address the wide range of potential light industrial uses permitted within the zone, including hi-tech industries, however not to the extent proposed in this application, without some form of justification.

45 Mr Smith's evidence on potential users of this floor space lacked specificity and was largely unconvincing. In my view this supports Mr Chapman's uncertainty over the use of Levels 4 to 8 for legitimate light industrial purposes.

46 In coming to the conclusion that Levels 4 to 8 are unacceptable, I have given regard to General Objectives for industrial zones in cl 42 where the zone objective is to accommodate industrial development which produces a range of goods and services and at the same time allow only those shops and services which serve the daily convenience needs of the workforce of the industrial areas. Clearly, the principal purpose of the zone is to accommodate light industrial development and while allowing other permissible non-industrial uses but only in an ancillary role. 47 I have also given regard to the changing nature of industrial development and the need for any redevelopment to make provision for cleaner and high-tech industrial uses. The inclusion by the council in Amendment 60 of "laboratories" as a permissible use within the zone is a good example. In this case I am not satisfied that the applicant has shown that the floor area in Levels 4 to 8 can be used in a manner that is consistent with the General Objectives of the zone.

Car parking/ floor space ratio 48 Mr Chapman states the proposal has a gross floor area of 10767 sq m while Mr Smith states that the gross floor area is 10125 sq m. This provides for FSR's of 1.6:1 and 1.5:1 respectively. If Mr Chapman's approach is accepted then the applicant's objection under State Environmental Planning Policy No.1 - Development Standards (SEPP 1) must be considered. The differences between Mr Chapman and Mr Smith relate to the interpretation of cl C 4.2 of the DCP.

49 Mr Chapman uses the requirements under the heading of "Industrial" in the table to cl C 4.2 D. He notes that the definition of gross floor area in cl 5 of LEP 1995 excludes "car parking needed to meet any requirements of the consent authority and any internal designated vehicular or pedestrian access to that parking". The corollary being that any spaces and access beyond that required by the council are included within the gross floor area of the proposal.

50 The DCP requirements for car parking for "Industrial development" relate to factory use area and storage area (and not gross floor area). Mr Chapman calculates this area at 9210 sq m. As no specific uses have been nominated for the proposed development, the maximum ancillary office and showroom component of 30% (cl 43(2A)(b) of LEP 1995) should be applied. The proposal would therefore provide 6447 sq m of factory use area and 2633 sq m of office and showroom floor area. Using a rate of 1 space per 77 sq m for factory use area and 1 space per 110 sq m for office and showroom floor area, the proposal should provide 108 spaces. The proposal provides some 64 spaces in excess of this figure and as such these spaces should be included in the gross floor area. 51 Mr Smith calculates the car parking on 3 different rates for a floor area of 9433.1 sq m. He adopts a rate of 1 space per 77 sq m for 6657.3 sq m of factory use area, 6 spaces per 100 sq m for 1200.8 sq m of showroom floor area and 1 space per 110 sq m for 1575 sq m of office floor area to calculate 85, 72 and 14 respectively for a total of 178 spaces. As 171 spaces are provided, the amount of car parking is not in excess of what is required by the DCP.

52 On this issue I accept the evidence of Mr Chapman. Clause C.4.2 of the DCP sets out car parking requirements for different land uses. The table to cl C.4.2 D identifies "Land Use" and corresponding "Parking Requirements". Broad land use categories are identified together with sub-categories of that broad land use. For example, one broad land use is Residential with sub-categories relating to dwelling houses, dual occupancy and residential flats. The relevant category in this case is "Industrial". The sub-categories are "Industrial development (including warehouses)", "High tech industrial", "Self storage facilities" and "Designated development". I agree with Mr Chapman that the appropriate category is "Industrial" and the appropriate sub-category is "Industrial development (including warehouses)". 53 The "Parking Requirements" for "Industrial development (including warehouses)" are: Office and showroom area in accordance with office/commercial rates above + 1 space/ 77 sq m of factory use area + 1 space/ 300 sq m of storage area Note: Where the end user of an industrial development is unknown, the parking rate will be estimated based on the maximum permitted ancillary office and showroom component under WLEP 1995 (up to a maximum of 50% of the net floor space), with the remainder of the floor area calculated on the factory use rate above. 54 As the proposal does not identify the end user, the Note within the parking requirements is important in determining the amount of car parking. The approach required by the Note is consistent with the approach adopted by Mr Chapman who uses the factory use area rate from the "Industrial development (including warehouses)" sub-category and the ancillary office and showroom rate from the "Office/commercial" category and "Office/commercial" sub-category relating to premises on Major Public Transport Corridors.

55 Mr Smith on the hand and adopts a rate from the "Retail" category and "Bulky Goods sales room or showroom" sub-category. In my view, it would be clearly inappropriate to place any reliance on the "Retail" category of the DCP taking into account the limited range and the circumstances where retail activities can be carried out in the industrial zone. I am also uncertain as to how the three categories identified by Mr Smith were determined as there was no dispute that the development application was not for any specific use or users.

56 This finding has the effect that the FSR of the proposal is 1.6:1 and as such the SEPP 1 objection would need to be considered. For reasons mentioned in the preceding paragraphs I have found that the proposed development should not be approved and it is not necessary to fully consider the SEPP 1 objection in the matter set out by Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 however the following comments should be made. 57 The FSR development standard in cl 43 of LEP 1995 does not contain any specific objectives. The SEPP 1 objection by Mr Smith identifies the aims and objectives of LEP 1995, the General Objectives in cl 42 and the specific objective of light industrial zone as having some relevance. From these sources he concludes the main objective of the FSR standard would be:

to ensure that there is sufficient floor space potential and capacity to meet the demand for provision of light industrial land uses and to ensure that the intensity of industrial development does not adversely affect the amenity and safety of adjoining residential areas or the efficiency of the operation of any local or regional traffic network. 58 While this could be a conclusion that could the drawn from the sources identified by Mr Smith, I do not accept that it properly addresses the objective of the FSR standard. A fundamental objective of a FSR development standard must relate to bulk and scale as the standard relates the amount of floor space to the site area. Not coincidentally, Amendment 60 includes objectives for FSR in a number of zones and relevantly includes bulk and scale.

59 For reasons mentioned earlier the bulk and scale of Building 1 was not acceptable principally because of the uneven distribution of floor space over the site. A finding that the SEPP 1 objection was not well founded would be likely in this case. Orders 60 The Orders of the Court are:

1. The appeal is dismissed. 2) Application 2006/896 for alterations and additions to an existing industrial building at 356A - 360 Eastern Valley Way, East Chatswood is refused. 3) The exhibits are returned.

      G T Brown
      Commissioner of the Court

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