Turner Architects v City of Botany Bay Council

Land and Environment Court (NSW)|2016-05-24

Solicitors: Bartier Perry (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 11100 of 2014

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 13/171 for the demolition of the existing industrial building and construction of a three to five storey residential flat building with a basement level (the proposal) at 10-12 Morgan Street, Botany (the site) by the City of Botany Bay Council (the Council).
The appeal was subject to mandatory conciliation on 23 March 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 11 November 2015, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 18 November 2015 for the applicant to rely on the amended proposal (Revision 6). The Council filed an amended statement of facts and contentions on 10 December 2015.

Issues

The Council's contentions in the matter can be summarised as:

The proposal fails to provide the minimum number of parking spaces required, with a shortfall of 13, and there are no visitor spaces indicated on the architectural plans.
The form, scale and location of the proposal are incompatible with the streetscape and surrounding development and inconsistent with the desired future character. The proposal does not appropriately address the transition in the scale of development to the east, west and north or the change in zone and transition in scale of development to the south on Morgan Street.
The built form of the proposal is inconsistent with the context and scale of surrounding development and fails to satisfy State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65). The proposal results in unacceptable internal and external amenity impacts, including an insufficient building separation between the proposal and the residential development to the north.

The Council submits that the contention regarding the inadequacy of the internal areas of some of the two bedroom units with reference to the requirement for unit sizes in the table in Part 3 the Residential Flat Design Code (RFDC) is addressed by the Apartment Schedule by Turner Architects dated 9 February 2016, listed in condition 1 of exhibit 8 and the contention regarding inadequate storage within apartments is addressed by DA-850-001 (Rev 9) RFDC Storage Locations, Apartment Storage Schedule (Rev 9b), listed in condition 1 and conditions 31A, 135(c) and (d) and 137 of exhibit 8.

The site and its context

The site is located on the northern side of Morgan Street between William Street to the west and Ocean Street to the east. The site has a total area of 2597sqm and is irregular in shape, being wider at the rear of the site in the north-eastern corner.
There is a residential flat development to the east of the site, 'Greenwood', which is comprised of a number of blocks and extends north to Banksia Street. Greenwood includes two blocks facing Morgan Street which are raised above ground level and are two storeys high with a hipped and gabled roof. One of the driveway entries to Greenwood is adjacent to the shared side boundary with the site.
There is an industrial building to the west of the site.
There is a contemporary townhouse development to the north of the site, with a terrace row of two storey townhouses running adjacent to the northern boundary of the site and small areas of private open space on the southern side of the terrace row for each dwelling.
The opposite side of Morgan Street is comprised of unattached residential dwellings.

The proposal

The proposal is for the demolition of the existing structures on the site and the construction of a residential flat building, three storeys high on the southern side fronting Morgan Street and five storeys high on the northern side of the site.
The proposal includes 3 studio units, 6 one bedroom units, 23 two bedroom units, 2 three bedroom units and 53 car spaces and parking for bicycles and motorbikes in the single level basement.

Planning framework

The proposal is subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) at cl 4(1)(a). SEPP 65 (Amendment No 3), which commenced on 7 July 2015, includes a savings provision at cl 31(2). As the development application was lodged on 6 September 2013, the proposal is to be determined as if the amendment had not commenced. Pursuant to s 79C(1)(a)(ii) of the EPA Act, regard is to be had to the amending SEPP 65. Consideration is to be given to the design quality of residential flat development, when evaluated in accordance with the design quality principles, at cl 30(2)(b) of SEPP 65 and the publication Residential Flat Design Code (RFDC) at cl 30(2)(c).
The site is zoned R3 Medium Density Residential pursuant to the City of Botany Bay Local Environment Plan 2013 (LEP 2013) (Land Zoning Map LZN_005 LEP 2013) and the proposal is permissible with consent. The objectives of the R3 zone 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. • To encourage development that promotes walking and cycling.
The northern side of Morgan Street, including the site, is zoned R3 and the southern side of Morgan Street is zoned R2 Low Density Residential.
The maximum building height development standard for the site is 10m (Height of Buildings Map Sheet HOB_005 LEP 2013). The objectives for the height of buildings at cl 4.3(1) of LEP 2013 are as follows: (a) to ensure that the built form of Botany Bay develops in a coordinated and cohesive manner, (b) to ensure that taller buildings are appropriately located, (c) to ensure that building height is consistent with the desired future character of an area, (d) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development, (e) to ensure that buildings do not adversely affect the streetscape, skyline or landscape when viewed from adjoining roads and other public places such as parks, and community facilities.
Clause 4.3(2A) of LEP 2013 relevantly includes the following: Despite subclause (2), if an area of land in Zone R3 Medium Density Residential or Zone R4 High Density Residential exceeds 2,000 square metres, the height of a building on that land may exceed the maximum height shown for the land on the Height of Buildings Map but must not exceed 22 metres.
The relevant objectives for floor space ratio (FSR) at cl 4.4(1) of LEP 2013 is to ensure that buildings are compatible with the bulk and scale of the existing and desired future character of the locality. Clause 4.4(2A) includes the following in regard to FSR: (2A) Despite subclause (2), if an area of land in Zone R3 Medium Density Residential or Zone R4 High Density Residential exceeds 2,000 square metres, the floor space ratio of a building on that land may exceed the maximum floor space ratio shown for the land on the Floor Space Ratio Map but must not exceed 1.5:1.
LEP 2013 (Amendment No 2) commenced on 5 February 2016. The parties agree that the effect of Justice Craig's recent decision in De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1 is that the proposal is saved from the operation of LEP 2013 (Amendment No 2), pursuant to the savings provision in cl 1.8A of LEP 2013. I accept the parties' submission that LEP 2013 (Amendment No 2) is to be treated as a draft LEP, which is certain and imminent by virtue of the fact that it is now made (Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195 [Terrace Tower], [5]-[6]). LEP 2013 (Amendment No 2) inserts cl 4.4C, as follows: 4.4C Consent to development in Zone R3 and Zone R4 Development consent must not be granted to development on land in Zone R3 Medium Density Residential or Zone R4 High Density Residential unless the consent authority is satisfied that the development will: (a) achieve acceptable amenity outcomes (including in terms of overlooking, overshadowing and comparative streetscape elevation) in relation to adjoining land, and (b) provide appropriate building setback, and (c) provide a transition in building scale to development on adjoining land, and (d) be compatible with the character of the area in terms of building bulk and scale, and (e) not impede the fulfilment of an objective of clause 4.3 or 4.4B. Note. Because clauses 4.3 (2A), 4.4 (2A) and 4.4B also apply only to land in Zone R3 Medium Density Residential and Zone R4 High Density Residential, this clause applies to development on land to which those clauses apply.
Following a request by Council, a Gateway Determination to amend LEP 2013 to delete cll 4.3(2A) and 4.4B was issued by the Delegate of the Minister for Planning on 7 September 2015 with a twelve month time frame to update the planning proposal subject to a number of conditions, to exhibit the planning proposal and to complete the LEP (exhibit 2, tab 12). No submissions were made by the parties in respect of the planning proposal or whether the planning proposal has yet been the subject of public consultation. On the basis of the potentially significant conditions imposed on the planning proposal by the Minster's delegate, including that the Council consider the implications for removing the bonus provision for height but not for FSR, I could not be satisfied that the planning proposal to delete cl 4.3(2A) is at all certain.
The City of Botany Bay Development Control Plan 2013 (DCP 2013) is a relevant consideration. The objectives for 'Parking Provisions of Specific Uses', at A.2 of Part 3A, include the following relevant objective: O1 To ensure the provision of parking is appropriate for the proposed use of development of the land
The relevant control for 'Parking Provisions of Specific Uses', is as follows: C2 Car parking provision shall be provided in accordance with Table 1. For land uses not specifically listed, car parking shall be provided as per the most similar use of equivalent intensity; and evidence in support of such provision of parking shall be provided to Council for assessment. Note: Council may reduce carparking provision in certain circumstances, as follows: 1. Peak parking and traffic activity occurs during periods where surrounding parking demand is lowest; 2. Existing site and building constraints make provision of car parking impractical; 3. Located adjacent to high-frequency public transport services and/or urban services; 4. Includes management regimes to minimise car use, such as workplace travel plans or on-site car share schemes; 5. Provides a business or social service that benefits the local community and contributes to the vitality of the area; 6. Safety of motorists, pedestrians and cyclists is unduly compromised by provision of parking; 7. Development contributes to heritage conservation of the building and setting;
The minimum car parking spaces required for Residential flat buildings, at Table 1 'Car Parking Provisions by Land Use' of DCP 2013 are as follows: 1 space/ studio or one bedroom dwelling; 2 spaces/ two or more bedrooms dwelling; and 1 designated visitor space/ 5 dwellings
Control C2 of 4C.2.2. Local Character of DCP 2013 requires development to comply with the relevant Desired Future Character statement in the DCP. The site is located within the Botany Character Precinct, at 8.4 of DCP 2013, which includes industrial and residential land uses. The desired future character for the precinct is for development to promote neighbourhood amenity and enhance pedestrian comfort, to encourage site layout and building styles and designs that promote commonality and a visual relationship with the surrounding built form and dwelling styles, to encourage dwelling styles that maintain and complement existing development patterns, to encourage a strong landscape and vegetation theme and to encourage development on larger sites to promote a parkland setting for residential development and to maintain roof forms to reflect the characteristics of the prevailing designs within the street. The desired future character for the precinct includes, in relation to form, massing, scale and streetscape, the following: Promote medium residential development in areas adjacent/adjoining existing medium density housing development with an [sic] FSR of 0.85:1 and 2 storey with attic (a maximum height of 10 metres) unless the site area is over 2000sqm which then permits a FSR of 1.5:1 and 2 to 6 storey (a maximum height of 22 metres).
Control C16 of 4C.2.7 Landscaped Area and Deep Soil Planting of DCP 2013 requires driveways and pathways to be located at least 1.5m from common boundaries to allow for a continuous landscape buffer strip to the side boundary.
Control C10 of 4C.2.9 Setbacks requires a minimum side setback of 3m for development greater than 7m in height.
The Design Excellence provisions of DCP 2013 at 4C.3.1 are a relevant consideration and aim to encourage innovative design that positively responds to the character and context of the locality, to create highly liveable urban places and to encourage well designed buildings that minimise the bulk and scale of the built form.
Section 4C.7 Large Development Sites (in excess of 2000sqm) of DCP 2013 provides relevant objectives and controls for the proposal, including the objective to ensure that the design of development on larger sites is of an appropriate scale and form and is compatible with the surrounding locality. The controls include a requirement that development along the street frontage consist of multi-unit dwellings with a maximum height of two storeys plus attic and that any proposed residential flat building must be situated to the rear of the site, behind the multi-unit dwellings to minimise the bulk and scale of the development and its visual impact on the streetscape. Dwellings within the development must be designed to provide a minimum of 100sqm internal area for 2 bedroom dwellings. Control C1 of 4C.7.3 of DCP 2013 requires the maximum height obtained under cl 4.3(2A) of LEP 2013 to be a minimum of 30m in distance measured from the front of the property.
DCP 2013 includes, at C3 of 4C.7.4 Floor Space Ratio, that not all site developments may be able to achieve the maximum permissible FSR due to particular site characteristics, including the need to reduce adverse impacts on neighbouring sites and not be able to satisfy Council's traffic, parking and vehicular access requirements. In determining an appropriate FSR for the site, applicants must demonstrate to Council, in their proposals, that the bulk and scale of development is acceptable and will not result in adverse impact on adjoining dwellings or the streetscape.

Public submissions

Seven local residents provided evidence on site at the commencement of the hearing and written objections to a number of the iterations of the proposal were tendered in the Council's bundle (exhibit 2). The objections to the proposal can be summarised as follows:

The availability of on-street parking will be significantly impacted by the proposal, particularly as the proposal does not meet the required number of car parking spaces on site and because car parking spaces in residential flat developments in the area are frequently used for storage and not parking;
The proposal is not in keeping with the streetscape due to the height and scale of the proposal;
The proposal will overlook adjoining properties and impact on their visual and acoustic privacy; and
The additional residents in the area will impact on the availability of existing public transport services for existing residents.

Parking

The applicant relied on expert traffic evidence from Mr Paul Corbett and the Council relied on expert traffic evidence from Ms Phoebe Mikhiel.
The experts agreed that based on the minimum requirements for car parking spaces in Table 1 of DCP 2013, 66 car parking spaces are required for the 34 units in the proposal; including 9 car parking spaces for the 9 studio and one bedroom units, 46 car parking spaces for the 23 two bedroom units, 4 car parking spaces for the 2 three bedroom units and 7 visitor car parking spaces. The proposal provides 53 car parking spaces. The Council conceded that the proposal, since amended, provides sufficient bicycle and motorbike parking spaces in the basement.
The experts agreed that the nearby bus stop is on a bus route that travels between East Gardens Shopping Centre and the city, which operates between 5.54am and shortly before midnight each day, with services approximately every 20 minutes during the peak hours and every hour at night time (exhibit 4). In addition, there is a M20 bus route along Botany Road that terminates at Gore Hill (exhibit H). Botany Road is approximately 850m from the site, according to the experts. Ms Mikhiel considers that the public transport services available from the site cannot be characterised as 'frequent' and Mr Corbett disagrees.
According to Mr Corbett, based on the Australian Bureau of Statistics (ABS) 2011 Census data (exhibit C, p 4), two bedroom units in the suburb of Botany have a car ownership rate of 1.28 cars per dwelling and the RMS 'Guide to Traffic Generating Developments' requires 1.2 car parking spaces per two bedroom units for medium density residential flat buildings (exhibit C, p 3). According to Ms Mikhiel, also based on the ABS 2011 Census data, the average size household in the Botany-Banksmeadow area is 2.72 persons, where 58% of dwellings are within areas of medium to high density and 46% of households have 2 or more vehicles (exhibit 3, par 2.4.1.7). The applicant submits that 'household' is not necessarily a two bedroom unit.
In Ms Mikhiel's opinion, the proposal could be amended to increase the number of car parking spaces in the basement, by adjusting the dimensions of the basement in an east/west direction, amending the layout to rationalise the circulation and providing some car parking spaces in a tandem arrangement.
In response to the experts' evidence that there were no car parking spaces allocated to a car sharing scheme; the applicant tendered a letter from the Business Development Manager of 'GoGet CarShare' on the second day of the hearing confirming their support of two parking spaces being allocated to GoGet within the proposal (exhibit J) and a proposed condition of consent requiring the provision of one car parking space for a car share scheme in the basement, with confirmation of an agreement with a car share company to provide a car for the parking space to be submitted to the Council (attached to exhibit 8). According to exhibit J, "each GoGet car replaces 10 to 12 private cars". According to Ms Mikheil, the car parking space to be allocated to a car sharing scheme should be provided in addition to the DCP 2013 minimum requirement of 66 car parking spaces for the proposal.
The applicant, in response to Ms Mikhiel's evidence regarding the inefficient layout of the basement, tendered exhibit M on the final day of the hearing, which shows a revised basement layout with a total of 58 car parking spaces; of which one space would be provided for use by a car sharing scheme, 14 of the two bedroom units would be provided with 2 car parking spaces in a tandem arrangement, 9 of the smaller two bedroom units would be provided with 1 car parking space and the remaining units would be provided with car parking spaces in accordance with the requirements of Table 1 in DCP 2013, including 7 visitor car parking spaces.
The provision of 58 car parking spaces (exhibit M) results in a reduced shortfall of car parking spaces of 8, based on the minimum requirements for car parking spaces in Table 1 of DCP 2013, when compared to the proposal, which has a shortfall of 13. I accept the applicant's submission that, on the basis of exhibit J, a car share vehicle replaces up to 10 to 12 private cars. I am satisfied that the provision of an on-site car share scheme car parking space combined with a demonstrated commitment from a car share company to provide a vehicle for that parking space, as required by the applicant's version of the conditions of consent, is an adequate substitute for the shortfall of 8 car parking spaces for the remaining 9 two bedroom units and is a circumstance that permits a reduction in the car parking provision from the minimum requirement of DCP 2013. The proposal is to be amended to substitute the basement layout in exhibit M and the applicant's version of condition 64.
I am also satisfied that the provision of an on-site car share vehicle, coupled with a condition requiring a bylaw that the parking spaces be used for car parking, is a reasonable alternative solution that achieves the objects of the parking provisions in DCP 2013 and justifies the exercise of flexibility in applying the provisions of DCP 2013 afforded by s 79C(3A)(b) of the EPA Act.
Given this finding, it is not necessary to deal with the experts' evidence regarding the ABS 2011 Census data and their disagreement over the actual demand of parking spaces for privately owned vehicles by occupants of two bedroom units in the Botany area. In principle, actual demand for parking, as demonstrated by census data, is a fact that would generally inform Council's approach to formulating their policy in regard to parking requirements and consequently the next iteration of a development control plan which reflects that policy, and is not necessarily an appropriate justification for exercising flexibility in regard a standard set by a development control plan. This is because Council policy regarding parking requirements will inevitably be informed by many factors, of which the current or historic parking demand as demonstrated by census data is but one.
In response to the evidence of a resident objector that car parking spaces within residential flat developments are frequently used entirely for storage, resulting in cars being parking on-street, the applicant proposes a condition of consent requiring the Owner's Corporation to prepare and adopt a bylaw that prohibits the use of car parking spaces being used entirely for storage purposes and car parking spaces must be used for car parking at all times. The imposition of this condition on the development consent was not opposed by the Council. I accept the offer by the applicant of a condition of consent requiring the adoption of a bylaw by the future Owner's Corporation that the parking spaces in the basement not be used entirely for storage and that they must be used for car parking at all times.
It is not necessary to make a finding on whether the site is located adjacent to 'high frequency public transport' as an alternative circumstance that may have allowed for the minimum requirements for the minimum car parking spaces in Table 1 of DCP 2013 to be relaxed. I am minded to agree with Ms Mikhiel's evidence that a local bus stop, albeit with a relatively frequent bus service to both the city and East Gardens Shopping Centre, is not in the spirit of what was envisaged by DCP 2013 as high frequency public transport services, as an alternative to car ownership.

The form, scale and location of the proposal

The applicant relied on expert urban design evidence from Ms Gabrielle Morrish and Mr Michael Neustein and the Council relied on expert urban design evidence from Mr Brian McDonald.
The parties agreed that the Council's urban design contention is focused on the following elements of the proposal:

The third floor of the southern component of the proposal;
The overall 5 storey height of the proposal, including the bulk, scale and built form of the proposal and whether that form is compatible with and provides an adequate transition to the surrounding context;
Any precedential effect consent for the proposal may provide.

Treatment of the shared boundaries of the site

The experts agreed that the boundary wall to the site on the northern and eastern shared boundaries, which is 8m high and forms the existing façade of the industrial building on the site, should not be retained or replaced at the same height, but instead should be replaced with a fence or wall 2.4m high and in Mr McDonald's opinion, any boundary wall could be as high as 3m. I accept the agreement of the experts and an agreed condition to impose this agreement on the consent is to be included in the conditions of consent and noted on the architectural drawings.

Northern elevation

The experts agreed that the northern elevation of the proposal could be improved, with the creation of a more varied contrast of solid to void together with the introduction of folding or sliding slatted screens. According to Ms Morrish, a fixed screen could be added to unit 3.01 to match the fixed screen on the unit below, unit 2.01, which would enhance the visual privacy of the private open space and rear elevation of the easternmost townhouse on the adjoining site. In her opinion, movable screens could be added to the northern elevation on the third floor to improve the appearance of the northern elevation and provide better protection from the northern sun during summer. I accept the agreement of the experts in relation to the northern elevation of the proposal and Ms Morrish's evidence regarding specific measures to improve the appearance and performance of the northern elevation.

Transition between the R2 and R3 zones

The southern side of Morgan Street is zoned R2 low density residential, with a height of buildings development standard of 8.5m. The northern side of Morgan Street is zoned R3 Medium Density Residential with a height of buildings development standard of 10m.
The site, being greater than 2000sqm and zoned R3, has the benefit of bonus height and FSR provisions, pursuant to cll 4.3(2A) and 4.4(2A), including a maximum height of 22m and FSR of 1.5:1, subject to satisfying the cumulative requirements of cl 4.4C of LEP 2013, on the basis that 'considerable weight' should be given to the draft instrument (Terrace Tower [7]) as it seeks to preserve the existing character of Botany by ensuring development on larger allotments is compatible with the character of the area in terms of building bulk and scale.
The five storey component of the proposal is setback 23m from the front boundary and is 17.3m above ground level. The control at 4C.7.3 of DCP 2013 requires the maximum 22m high residential flat building component of a proposal to be setback 30m from the front boundary.
In Ms Morrish's view, the transition from the low density residential zone on the northern side of Morgan Street to the proposal is acceptable, because the five storey component of the proposal is setback a sufficient distance from the front boundary; Morgan Street is a wide street; the retention of the mature trees along the front boundary of the site softens the transition to the higher density development on the northern side of Morgan Street; and the three storey portion of the development contributes to the transition between the southern and northern sides of Morgan Street.
In Mr McDonald's view, the fifth storey contributes substantially to the excessive bulk and scale of the proposal. Mr McDonald agreed in cross-examination that a proposal less than 22m in height could have a proportionally lesser setback from the front boundary than 30m.
I accept and prefer Ms Morrish's evidence in regard to the acceptable transition between the residential dwellings on the southern side of Morgan Street and the proposal. The height and front setback of the five storey portion of the proposal maintains the same angle of incline measured from the street boundary as required by the control in 4C.7.3 of DCP 2013 for a building of the maximum height of 22m. I am satisfied that the proposal will have an acceptable relationship with the low density residential zone on the southern side of Morgan Street because the three storey portion of the proposal provides a transitional step and maintains a similar street wall as 'Greenwood' to the east of the site.

Transition between the proposal and surrounding development

The rear setback of the proposal is 7m at the north-western corner of the proposal and 16.7m at the north-eastern end. This is because the rear boundary is on an angle and is not parallel to the front boundary, with which the proposal aligns. The site also steps further to the east than the eastern boundary adjacent to the proposal, providing an area of deep soil at the north-eastern corner of the site.
The narrow area of private open space to the neighbouring townhouses, adjacent to the northern shared boundary of the site, extends for 18.5m along the boundary from the north-western corner. The amenity of this open space is potentially impacted on by the units on the north-western corner of the proposal (units 1.02, 2.02 and 3.01) and to a lesser extent, the units adjacent to the corner units (units 1.03, 2.03 and 3.02). To the east of the terrace row of townhouses directly adjacent to the northern boundary there is a garage building and the side elevation of the terrace row running north-south. The proposal is separated 17.5m from the private open space of the southernmost townhouse of this terrace row. The increasing setback of the proposal from the rear boundary towards the east, coupled with the proposed landscaping within the rear setback, provides a satisfactory relationship between the proposal and the existing townhouse development. The Council seeks to impose a condition on the consent, opposed by the applicant, to require a 1m soil depth within planters to support trees with internal drainage (condition 42(d)(i) of exhibit 8), which would apply to the landscaped area in the rear setback over the basement. As the visual privacy and amenity of the northern neighbour will be enhanced by adequate landscaping over the basement at the rear of the site, the condition is to be retained.
The units in the north-western corner of the proposal on levels 1 and 2 have a bedroom on the northern facade, with a narrow terrace and a screen on the façade in front of the bedroom window. The terrace to the east of the bedroom, off the living area, is unscreened. It was agreed by the experts that the screen in front of the bedrooms provides some visual privacy to the rear open space of the townhouses to the north of the site where the proposal is closest to the rear boundary. Ms Morrish's suggestion of the screen being repeated on Level 3 has been accepted in relation to the northern elevation and this will provide some additional visual privacy for the private open space of the townhouses from the terrace to Unit 3.01, where the setback from the northern boundary is narrowest. Level 4 consists of bedrooms on the northern elevation which are fully screened (Level 4 plan DA-110-040 Rev 9, Section 3, DA-350-003 Rev 9 and the northern elevation DA-250-001 Rev 9 of exhibit A).
I accept the Council's submission that the adjoining properties, without consolidation, are either unlikely to be redeveloped in the near future or are too small to avail a future development of the bonus height and FSR provisions in LEP 2013. Nevertheless, the proposal is well within the scale and form contemplated by the development standards for sites above 2000sqm and I am satisfied that the proposal will be a decorous fit with 'Greenwood' to the east, that the design of the fifth storey as a mansard styled roof and the rear setback will provide an adequate transition between the proposal and the two storey townhouse development to the north, resulting in acceptable amenity outcomes, and that it is compatible with the character of the area in terms of building bulk and scale.

The three storey presentation of the proposal to Morgan Street

Control C1 of 4C.7.2 of DCP 2013 requires development on large development sites to have a maximum height along street frontages of two storeys plus attic. The objectives for height, at 4C.2.4, are to ensure that the height and scale of buildings are consistent with the streetscape, that new developments complement the scale, massing and design of adjoining developments and to ensure that any amenity impacts are within acceptable limits. The objectives for streetscape presentation, at 4C.2.3, are to ensure that development recognises predominant streetscape qualities (ie setback and design features), to encourage innovative design that responds to the character of the area and the streetscape context and to maintain the characteristic building orientation and siting. Both sections are illustrated with the same sketch, shown below:

DCP 2013 Figure 3 Street Continuity 4C.2.3 and Figure 5 Characteristic Building height 4C.2.4 Characteristic Building Height

A maximum height of two storeys plus attic is equivalent to a maximum height three storeys, as an attic level must also meet the requirements of the Building Code of Australia. The on-line Macquarie Dictionary defines 'attic' as '1. that part of a building, especially a house, directly under a roof; a garret'. A description of 'two storeys plus attic' suggests a building envelope or a three dimensional form, with two levels and a partial floor over, predominately contained within the roof. However, the specific reference to height in the wording of the control (and not to building envelope or three dimensional form) must indicate a height, being a numerical value, equivalent to three storeys. The control is further confused by the repetition of the street continuity sketch reproduced above, which uses an elevation of a three storey building to illustrate the height control in DPC 2013.
The reference to two storeys plus attic for medium [density] residential development in the desired future character statement for Botany specifically excludes sites with the benefit of the bonus height and FSR provisions, 'unless the site area is over 2000sqm which then permits a FSR of 1.5:1 and 2 to 6 storeys' [italics added].
The portion of the proposal fronting Morgan Street is three storeys. The design has sought to respond to the 'attic' requirement by including raked louvres in front of the upper level of the proposal, as a nod to a traditional dormer and a way of interpreting a pitched roof, according to Ms Morrish. Mr McDonald objects to the pitch of the louvres at 58 degrees, as he is of the view the pitch of any such element should be 45 degrees, in order to evoke an attic form.
The three storey presentation of the proposal to Morgan Street is acceptable, because the proposal complies with the height control in DCP 2013 with a three storey street elevation and it seeks to respond to the two storeys plus attic description in the height control by incorporating the raked louvres in front of the third floor street elevation. While I accept Mr McDonald's criticism that the louvres are steeply raked and do not immediately evoke a roof form, I concede that any traditional "roof" over the three storey portion of the proposal is inevitably going to be somewhat tokenistic and only address the street front, because the rear section of the building is five storeys. Furthermore, the purpose of the steeply raked louvres is to respond to the 'two levels plus attic' requirement without constraining the third floor to being a smaller area within a roof form and I note that the proposal complies with the bonus FSR provision of LEP 2013 of 1.5:1 with an agreed FSR of 1.4:1 (exhibit 5, p 6), which lends some justification to the applicant's desire to maintain a similar floor area on the third floor as the floor below. In my view, the louvres are an innovative way of interpreting the control, the proposal meets the 'height' control in DCP 2013 as it is an equivalent height to two storeys plus attic and I am satisfied that the appearance, length, height and design of the street elevation of the proposal is consistent with the streetscape and complements the scale, massing and design of the adjoining development.

Precedential effect of the proposal

The Council submits that the future development of the adjoining property to the west, which is less than 2000sqm and contains an existing industrial building, will seek to rely on the height of the proposal as a contextual feature that justifies a height above the development standard for the site of 10m. The proposal legitimately may rely on the bonus height and FSR provisions in LEP 2013, if it satisfies the tests in the amending LEP 2013, cl 4.4C of LEP 2013. Any precedential effect the proposal may provide for the development of an adjoining property that does not meet the minimum site area to be availed of the bonus provisions in LEP 2013 is not determinative in this appeal.

Findings

For the reasons set out in the judgment, I am satisfied that the substitution of the revised basement layout in exhibit M providing 58 car parking spaces, coupled with the provision of an on-site car share scheme vehicle and a condition requiring a bylaw that parking spaces in the basement be used for car parking, is a satisfactory solution. The provision of the car share scheme vehicle is an appropriate circumstance that permits the reduction of the minimum number of car parking provisions in DCP 2013 and adequately addresses the Council's contention regarding the non-compliance of the proposal with the minimum car parking requirements in Table 1 of DCP 2013.
In considering all of the evidence before me, I am satisfied that the design, form and scale of the proposal are consistent with the desired future character for Botany, and the site layout and architectural style seeks to maintain the general, mixed character of the area within a landscaped, parkland setting. The design of the proposal achieves acceptable amenity outcomes in relation to adjoining land, provides an appropriate building setback to the northern boundary and is compatible with the character of the area in terms of building bulk and scale.

Directions 1 March 2016

Directions were handed down on 1 March 2016 for amended architectural drawings and conditions of consent, as follows: The basement level plan is to be substituted for the basement level plan in exhibit M. The 1 car share parking space and the 7 visitor parking spaces are to be indicated on the basement plan. A fixed screen is to be added to unit 3.01 to match the fixed screen on the unit below, unit 2.01. Movable screens are to be added to the Northern Elevation on the Third Floor, consistent with Ms Morrish's evidence and to her satisfaction. The proposal is to be relocated on the site in accordance with condition 1 of exhibit 8, with a 2m side setback on the eastern side and a 4m side setback on the western side. Enclosures for the fire booster assembly and substation kiosk are to be designed and added to the amended architectural documentation to the satisfaction of the urban design experts. The Gross Pollutant Trap (GPT) is to be relocated from its proposed location in the centre of the street setback and the new location is to be approved by Council and is to be shown on the amended architectural documentation. The amended architectural drawings are to be given new revision numbers. The respondent is to file amended conditions of consent with the latest revision numbers shown as the approved plans and including or deleting the following conditions: A condition for the boundary treatment of the site, as informed by the urban design experts and agreed by the parties. Conditions 1, 4, 40, 41 (excluding the sentence regarding Tree 9), 55 and 69 are to be deleted as the amendments are to be made to the architectural documentation. Condition 42(d)(i) is to be retained. The last word 'plans' in condition 47 is to be deleted. Condition 63 is to be deleted. The applicant's version of condition 64 is to be substituted, 'Car parking', 'Car share scheme' and 'Storage in car spaces' (attachment to exhibit 8), with any amendments to the wording of those conditions as agreed by the parties. The parties are to agree on the number of parking spaces that are to be accessible spaces, to comply with AS 2890.6. Condition 68(c)(i) is to refer to the most recent Hydraulic Services Plan for the proposal. Condition 107 is to be retained. The parties are to provide an agreed version of conditions 62, 108(b) and 128(b) regarding access to the basement for small and medium rigid vehicles for loading/unloading and the collection of waste or agree on an alternative method for the collection of waste and their agreement is to be reflected in the agreed conditions of consent.

Re-opening of the hearing

After I had reserved my decision, the parties continued to negotiate over the conditions of consent and the respondent filed conditions of consent electronically on 17 February 2016. The conditions of consent filed on 17 February 2016 included a condition for 60 car parking spaces to be provided in the basement, with 2 spaces dedicated to car share scheme.
An application to re-open the hearing was sought by the respondent on 6 April 2016 and granted, following the submission of short written submissions.
At the hearing on 10 May 2016, the parties agreed to a total of 58 car spaces in the basement including 2 spaces allocated to a car sharing scheme and additional conditions regarding a requirement for traffic management measures to overcome the deficiency in the width of the circulation roadway adjacent to the southern boundary wall.
The Council filed agreed conditions of consent on 16 May 2016 and the applicant filed an updated basement plan consistent with the agreement of the parties and an updated Basix Certificate on 13 May 2016.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 13/171 for the demolition of the existing industrial building and construction of a three to five storey residential flat building with a basement level at 10-12 Morgan Street, Botany, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits1, A, B, M and N, are returned.

Susan O'Neill Commissioner of the Court 11100 of 2014 O'Neill (C) (431 KB, pdf) 11100 of 2014 O'Neill_5631105_1 Plans referred to in Condition 1 (16.0 MB, pdf)

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: 24 May 2016

(2003) 129 LGERA 195

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