Findings
17There was no dispute that the proposed development satisfies the 23 m height limit identified on the Building Height map and the maximum FSR in LEP 2011.
18There was disagreement between Ms Atwal and Mr Gosling on the applicability of SEPP 65 however I accept the approach of Mr Gosling that this document does not strictly apply to the proposed development, not being a "residential flat building"(see cl 4(1) of SEPP 65)). Residential flat building is defined in cl 3 as;
residential flat building means a building that comprises or includes:
(a) 3 or more storeys (not including levels below ground level provided for car parking or storage, or both, that protrude less than 1.2 metres above ground level), and
(b) 4 or more self-contained dwellings (whether or not the building includes uses for other purposes, such as shops),
but does not include a Class 1a building or a Class 1b building under the Building Code of Australia.
19There was no dispute that the proposed building is "3 or more storeys" (pt (a)) however there was disagreement over whether the boarding rooms were "self-contained dwellings" (pt (b)). Given the size of the boarding rooms (minimum 12.3 sq m) and that occupants are provided with a communal lounge area and communal terrace area to presumably allow social interaction, outside the boarding rooms, it could reasonably be argued that the boarding rooms are not "self-contained dwellings" as the normal functions associated with a dwelling cannot be carried out within the boarding rooms.
20This conclusion is further supported by the submission of Mr Staunton that SEPP 65 does not apply to Division 3 Boarding houses because of the specific absence of a reference to SEPP 65 in this division. This needs to be compared to Division 1 In fill affordable housing and Division 5 Residential flat buildings where it states, at cll 16 and 39 respectively, that SEPP 65 applies to these divisions.
21Notwithstanding this, I agree with Mr Gosling that the principles in SEPP 65 are a helpful guide to consider the contentions raised by the council.
22The dispute centres on the number of storeys. Part C6 of Precinct 22 provides requirements for height that state:
Building height
C6 The height of the proposed buildings within the allotment shaded in the Figure (22.1a) must conform to the control diagram(s) in Figures (221b) and (22.1c). The height is expressed in number of storeys.
23The site falls within the allotments shaded in the Figure (22.1a). Figure (22.1b) identifies a Plan Diagram with the site having a height of 5 storeys within the articulation zone at the Wardell Road frontage and a height of 6 storeys for the remainder of the site with the exception of an area of Murray Lane, at the rear, where the specified height is 1 storey. Figure (22.1c) (see below) identifies Section Diagrams with the site having 5 storeys (six levels including ground level) and heights of storeys 1 to 5 of 3 m. This measurement presumably does not relate to a floor-to-ceiling height but a height between floor levels that includes around 300 mm for the thickness of the floor slabs. The height on the ground level appears greater than the upper levels although it is not dimensioned. As I understand, the additional height on the ground level was required to facilitate the use of this level for retail activities.
24On the disputed question of whether the proposed development respects the context and scale of the existing streetscape and the desired future character of Precinct 22 because of the additional storey, I prefer the conclusions of Mr Gosling for a number of reasons.
25First, and while I accept that consistent floor to ceiling heights for all future developments fronting Waddell Road may provide a consistent pattern in the streetscape, I am not satisfied that variation to the floor to ceiling heights on the upper levels of the development necessarily impacts on massing, context and scale and streetscape appearance, particularly given that there is compliance with the overall height of the proposed development. It could reasonably be assumed that compliance with the height requirement for future developments along Waddell Road would be required, and as such the stepping down along Waddell Road to follow the natural topography would still be achieved. If the objective is to provide for a stepped appearance down Wardell Road then this is best achieved through compliance with the height requirement. While a consistent stepping of floor levels may add to this consistency, I do not accept that it is necessary to satisfy the objective of stepping a building down Wardell Road.
26In my view, Ms Atwal's concerns over the streetscape and consistent appearance down the slope of Wardell Road would have greater weight, if the maximum building height were exceeded. The breach of the maximum building height has far greater potential to impact on the Desired future character than variations to the floor-to-ceiling heights of the upper levels.
27Second, I accept the evidence of Mr Gosling that given the range of permissible uses in the B1 Neighbourhood Business zone that it is possible that other non-residential uses uses, such as Business premises, Food and drink premises, Health service facilities, Medical facilities, may occupy the levels of any building above ground level and this could potentially necessitate floor-to-ceiling heights greater than anticipated by the 3 m distances between floors shown in Figure (22.1c). Clearly some flexibility needs to be included to accommodate the range of potential uses in the zone.
28Third, and while Ms Atwal questioned the use of a 2.4 m floor-to-ceiling height for the proposed development, in the context of the 2.7 m Rule of Thumb in the RFDC, she raised no concern over the 2.4 m height in relation to any potential adverse amenity impacts on the future of occupants of the boarding rooms. As I understand, her concerns over the 2.4 m floor to ceiling height focused solely on the streetscape and Desired future character impacts.
29Fourth, I agree with Mr Gosling that the proposed development is consistent with the Desired future character of Precinct 22. The relevant parts of cl 9.22.2 state:
9.22.2 Desired future character
The desired future character of the area is:
- To protect and enhance the predominantly mixed density residential character of the precinct and to continue its role in providing a mix of housing types close to public transport.
- To protect and enhance the character of streetscapes and public domain elements within the precinct including views and vistas, prevailing subdivision patterns, building typologies, materials and finishes, setbacks, landscaping, fencing, open space, carriageway and footpath design and kerb and guttering.
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- To facilitate urban renewal in appropriate locations, especially within the Dulwich Hill commercial centre with substantial increase in density as mixed use development.
- To revitalise the neighbourhood shops within the Dulwich Hill commercial centre, including the consolidation of residential properties on the eastern side of Wardell Road and expansion into Dudley Street.
- To take advantage of the characteristics of Dudley Street with low traffic; wide street carriageway; gentle footpath gradient; northern aspect and railway cutting that shields rail noise, to create a new high amenity mixed-use streetscape (maximising potential for shopfronts and residential oriented perpendicular to Dudley Street, widened footpaths, landscaping improvements, outdoor dining space and Local Area Traffic Management).
- To ensure orderly development on masterplan sites in accordance with the principles of the masterplan vision, including allotment amalgamations where required, that are not detrimental to achieving the overall masterplan structure and achieve an efficient and high quality built outcome.
- To support excellence in contemporary design.
- To ensure the design of higher density development enables sustainable building design.
- To ensure the design of higher density development provides adequate amenity for the intended occupants of the building and protects the residential amenity of adjoining and surrounding properties.
30I do not accept that the proposed floor levels impact, in any meaningful way, on the Desired future character of Precinct 22. I note that Ms Atwal's desire for a consistent floor-to-ceiling height along Wardell Road is not a specific objective in cl 9.22.2.
31I have little trouble in concluding that the proposal is consistent with the relevant parts of cl 9.22.2 in that it enhances the predominantly mixed density residential character (pt 1), enhances the character of streetscapes and public domain (pt 2), facilitates urban renewal (pt 10), revitalises the neighbourhood shops (pt 11) and create a new high amenity mixed-use streetscape (pt 12).
32I am satisfied that the principles in SEPP 65 relating to Principle 1 Context, Principle 2: Scale and Principle 3: Built Form are satisfactorily addressed by the proposed development.
33I am also satisfied that the proposed development satisfies the relevant objective of for the B1 Neighbourhood Centre Zone, being:
To provide for housing attached to permissible non-residential uses in development of a type and scale compatible with the surrounding neighbourhood.
34While reference was made in the evidence to a 8-storey building, a reference to this level is to the communal terrace and covered BBQ area and the lift and stair well enclosures that provide access to this level. Ms Atwal and Mr Gosling agreed that the structures cannot be seen in the immediate vicinity of the site and that the use of the area and the structures are acceptable.