Warne Place v Marrickville Council

CASES CITED: Port Stephens Pearls Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 426

APPLICANT Mr A Galasso, barrister Instructed by: Ms L Finn, solicitor LEGAL REPRESENTATIVES: Of: Abbott Tout RESPONDENT Mr J Ayling, SC Instructed by: Mr G Christmas, solicitor Of: Marrickville Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 This appeal relates to Development Application No. 200500098, which is for the demolition of a number of existing buildings, the remediation of the site and the construction of a residential flat complex at 525 Illawarra Road, Marrickville. 2 More particularly the proposal comprises 106 dwellings in four essentially separate four to five storey buildings above two levels of basement car parking. These buildings are referred to as Buildings A, B, C and D. Pedestrian access is off both Illawarra Road and Thornley Street and all vehicular access is off Roseby Street which is also known as Warne Place. 3 Block A is situated on the corner of Thornley Street and Hampden Avenue. Block B is situated on corner of Hampton Avenue and the lane of Hampton Avenue. Block C situated at the western end of Block A and Block B and the resulting "U" shaped building encloses the site's principal communal open space area. Building D fronts Illawarra Road at the corner of Warne Place, separated from Building C by the central access Court that extends between Thornley Street and Warne Place. 4 The site is bounded by Illawarra Road, Thornley Street, Hampden Avenue, Warne Place and an unknown laneway off Hampton Avenue and has an area of 7,403 sq m. Whilst the site is relatively level it is situated within the remains of a large quarry with residual quarry faces having heights of up to 14 m in Hampden Avenue. 5 The area surrounding the site predominantly comprises a mixture of residential uses plus some small scale industrial and recreational uses. To the north and east the immediate locality primarily comprises single dwelling houses. On the opposite side of Illawarra Road to the west there are low to medium density residential flat buildings. On the opposite side of Donnelly Street is a large community recreation facility. Two small shops exist on the corner of Illawarra Road and Thornley Street (Nos. 527 and 529 Illawarra Road ("the two corner lots")), these not being part of the development site. Statutory provisions 6 Under Marrickville Local Environmental Plan 2001 ("the LEP") the site is zoned Residential 2(c) in which zone multi-unit housing developments and residential flat buildings are permissible with development consent. Clause 45 and Sch 2 of the LEP contain specific development controls for the site, including maximum floor space ratio provisions that vary according to the actual area of the site that is the subject of the development application. Having an area in excess of 6,000 sq m, the site-specific development control in subsec (c) is applicable and a maximum floor space ratio of 1.2:1 is thus available for the site. In addition Sch 2 permits certain additional uses with development consent including commercial premises and shops. 7 The objectives of the 2 (c) zone are: (a) to identify areas suitable for multi-unit housing and residential flat buildings to a maximum of three storeys in appearance, and (b) to provide opportunities for non-residential development which is of a type and scale that is compatible with the surrounding area, and (c) to enable large sites to be developed for multi-unit housing and residential flat buildings exceeding three storeys in appearance. 8 The site also contains an item of environmental heritage being Item 3.27 "quarry and stonewalling" as identified in Sch 5 of the LEP. The heritage conservation controls in Pt 6 of the LEP in effect require that prior to the determination of a development application affecting a heritage item consideration must be given to possible impacts on the item. In addition consent must not be granted unless consideration has been given to a heritage impact statement. 9 A conservation management plan and heritage impact statement was submitted with the development application and subject to a number of minor changes to the proposal the recommendations contained therein were supported by council's heritage and urban design adviser. The stonewalling has been assessed as having local significance. More particularly the quarry was operated from around 1885 and now provides evidence of an important industry in Marrickville's early history in the context of government funded relief works during the Depression Years. 10 Apart from an expressed concern as to the setback of Building A from the quarry wall, no issue was raised by the council in relation to the heritage significance of the quarry. 11 Marrickville Development Control Plan No. 40 - Warne Place, South Marrickville ("the DCP") is a site-specific development control plan that applies to the " Warne Place site" being the street block within which the subject site is located. The two separate lots at the corner of Illawarra Road and Thornley Street that are not the subject of this development application are subject to the provisions of the DCP. The DCP relevantly contains standards setting maximum height, maximum number of storeys and building setbacks. It reiterates the same floor space ratio standards as contained in the LEP. It also contains building height controls including view preservation planes, view cones and corridors as well as site consolidation requirements. 12 There are also a number of other development control plans that apply to the site but they have little if any relevance in the context of the issues to be determined by the Court. Advertising and council's decision 13 The application was advertised and objections were received in the form of: 224 pro forma letters; a petition containing 209 signatures; and 66 individual letters. Matters of concern raised in those submissions include: · the proposal would be out of character with the surrounding residential development, · the traffic generated by the proposal would adversely affect that surrounding residential streets, · the proposal would have an excessive density, height, bulk and scale, · the site is flood prone, · the proposal would adversely affect surrounding residential areas in terms of noise and air pollution, · neighbouring dwellings would suffer a loss of views and a loss of privacy, · the capacity of the local sewage system is inadequate to cope with the proposal, · adverse impacts in terms of noise dust etc during the construction phase, · non-compliance with the requirements of the DCP especially in relation to building height and also in relation to the failure to achieve complete site amalgamation.

14 Minor revisions were subsequently made to the proposal and amended plans submitted. Re-advertising was not required. 15 A council officer's report was prepared and submitted to Council's Development and Environmental Services Committee with the committee recommending that a deferred commencement consent be granted. 16 The council resolved that the application be refused for the following reasons: 1. The proposed development represents an overdevelopment of the site by virtue of its height mass, bulk, scale and siting. 2. Traffic associated with the proposed development would generate unacceptable impacts on local area. 3. In view of the overwhelming opposition to the proposal, approval of the application would not be in the public interest. 17 The notice of determination refusing the application was issued on 7 September 2005. The issues 18 The statement of issues identifies seven separate issues which in essence involve the following: 1. Failure to comply with the height controls in the DCP. 2. Failure to comply with the setback controls in the DCP. 3. As a consequence of the non-compliances with the height and setback controls the proposal represents an overdevelopment of the site and fails to respect the objectives of the DCP 4. Unacceptable internal planning arrangements. 5. The proposal does not include land at the corner of Thornley Street and Illawarra Road and thus fails to meet the relevant objectives of the DCP. 6. Traffic impacts in the locality 7. Objections and public interest The evidence 19 Town planning and urban design evidence was given by the Court-appointed expert Mr M Harrison. On behalf of the applicant, expert traffic engineering evidence was given by Mr T Rogers. 20 Whilst on site I heard from 14 residents who elaborated on their written objections. I also visited some of their homes to better understand their concerns. Those concerns mainly comprise: · Failure to comply with various requirements of the DCP. · Interruption of views generally including views towards the cooks River. · Local streets will not be able to handle the increased traffic volumes. Road surfaces are inadequate and children's safety is a concern. · The large bulky buildings will be too close to many existing dwelling houses. · Existing sewage infrastructure does not have the capacity to accommodate such a large development · The site and the locality are prone to localised flooding. Building height 21 The applicable height controls are to be found in s 3.3 of the DCP. The objectives of these controls are:

· To minimise buildings and structures obstructing views across the Site to the Cooks River and to the ridge to the southwest. · To minimise the height of buildings in line with the height of the quarry wall. · To create a ground level view corridor and pedestrian level link through the site into Steel Park. · To provide scope for a landmark building on the corner of Illawarra Road and Thornley Street. · To allow flood-free and car parking landscaped podiums to be built above the existing ground level to establish a new ground level from which building heights may be measured. 22 Section 3.3.3 makes reference to Fig. 9, which illustrates the number of storeys possible for an integrated development of a fully consolidated site. Whilst this site is not fully consolidated there was no dispute that the storeys control in Fig. 9 is applicable. There was however an unresolved dispute as to the interpretation of the control particularly as to whether the number of storeys shown in the diagram includes the podiums depicted for example in the south-east and north-east sections. 23 Table 3 in s 3.3.3 prescribes a 10 m maximum height for a residential flat building in the 2(c) zone but this can be exceeded to a maximum height of 15 m if: · The site exceeds 2,500 sq m, · The site has a frontage of not less than 30 m and · Any roof and roof top structures are kept below certain prescribed view preservation planes. 24 The advisory notes in the DCP state that maximum height limits in Table 3 are not to be taken "as of right" controls and are dependent on how well the proposed development satisfies all other relevant design controls. Instead, the critical height controls are the view preservation controls in s 3.3.3(b). In this context and according to Mr Harrison most of the proposal complies with the 15 m height limit but more importantly the entirety of all the buildings fall below the DCP specified relative levels particularly taking into account the view preservation planes. 25 The site's view preservation planes as contained in s 3.3.3(b) are detailed in three somewhat complicated diagrams each marked as "Figure 12" [it appears that these diagrams should have been respectively numbered 10, 11 and 12 to enable a proper understanding of the text in s 3.3.3(b)]. These view preservation planes are each particularised with precision in terms of various relative levels. The diagrams also need to be interpreted in the light of Figs. 13 and 14, which establish permissible building envelopes. Figure 13 details setbacks, plazas and open space areas, podiums and setbacks and Fig. 14 provides specifications for a "landmark building". 26 According to Mr Harrison, whilst Block A, Block B and the northern portion of Block C exceed the number of storeys, the buildings remain wholly below the relative levels specified in Figs. 10, 11 and 12 (the view preservation planes). As a consequence and given that in his opinion, there are minimal impacts on views from neighbouring properties the non-compliance should be permitted. It is also to be noted here that if the diagrammatic podium levels were to be taken into account (see for example Fig. 12 - the View Preservation Section in the DCP) the storeys control may be complied with. 27 Taking into account the effective compliance with the building height objectives in the DCP particularly the objectives requiring the minimisation of impacts on neighbouring properties Mr Harrison was of the opinion that any non-compliance should be disregarded. 28 Even making the assumption that the proposal does in part exceed the storeys and the height controls in the DCP I am of the opinion that, taking into account the objectives of the height controls any impacts associated with such an exceedance would not attract any determinative weight especially in an urban design context. 29 Whilst the view preservation plane for the Day Street dwellings could be criticised for failing to be sensitive to the south-easterly views to from No. 4 Day Street it cannot be assumed that this particular control is wrong. In reaching this conclusion I have taken into account the considerable particularity and precision of the suite of view preservation planes, which have plainly been designed to achieve a certain level of view preservation for surrounding dwelling houses. 30 Also in terms of height there was some concern that the residents in Building B using the access walkway on level 3 would be able to look into the back yards of two properties in Day Street. This building is set back from the relevant property boundary a distance of 12.5 m, a greater distance than the 10 m requirement shown on Fig. 13 of the DCP. Despite this distance of separation I have decided that a privacy screen should be provided for this access walkway between gridlines E and K. 31 Finally here, whilst some of the buildings exceed the height of the quarry face and indeed extend above the stone wall along the Hampton Avenue boundary I do not accept that this is a matter of concern. Being able to see residential building forms above this wall is not inappropriate especially when the view preservation planes from Hampton Avenue are taken into account together with the fact that the end view of Buildings A and B occupy only about one third of the total frontage. Building setbacks 32 In relation to building setbacks the respondent contends that · Building C should have a setback of 10 m whereas a setback of 9 m is proposed, · Buildings A and B should have a setback of 12 m whereas a setback of 6.45 m is proposed · Building A should have a 30 m setback whereas a setback of 23.5 m is proposed. 33 In relation to Building C Mr Harrison pointed out that the relevant part of the building exceeds the 10 m requirement and the non-complying component comprising a width of 12 m was a very small proportion of the overall length of the boundary and the 80 m long building. Other buildings facing the northern boundary have larger setbacks than required. In his opinion the varying setbacks proposed comprise a good architectural solution. In relation to Buildings A and B he explained that the setback non-compliance involved an intrusion towards the quarry face by 2.4 m. He explained that the average setback to the cliff is substantially greater than would otherwise be required and the infringement is negligible given the size of the site. Moreover the proposal comprises a good architectural resolution as it positions buildings with outlook to open space rather than parallel to the cliff face. In relation to Building A he noted that the proposal intrudes into the set back from the Thornley Street quarry face for a distance of 6.9 m. Again this non-compliance is compensated by a substantial area of open space near the cliff between Buildings A and B. 34 I agree with Mr Harrison's conclusions in relation to building setbacks and am satisfied that the quality of the design including the architectural resolution of the buildings and their relationships to the boundaries and the quarry face is such that the non-compliances should not attract any determinative weight. Internal planning arrangements 35 The internal planning arrangements of concern to the council involve: · secure all-weather access to some ground floor units, · the south facing balconies of some units and associated privacy issues, · internal stairs within adaptable units. 36 According to Mr Harrison it is not normal practice for houses, townhouses and ground floor units with external street access to have weather protection for their access ways; acknowledging that ground floor apartments only have internal access when the apartments are on both sides of a central corridor. The better approach to design and planning is to provide ground floor "through apartments" that extend across the entire width of the building thus allowing cross ventilation and providing access to outdoor spaces in the form of private courtyards. In this context he noted that the Residential Flat Design Code advocates the optimisation of the number of ground floor apartments with separate entries and access to private open space. Whilst weather protection could be provided it would have an adverse affect on views to ground level open space and landscaping from upper levels as the occupants of adjacent apartments would be looking down on roof structures rather than landscaping. Similarly the absence of such structures is beneficial in terms of sunlight and rain access to landscaped areas. 37 In relation to the units in Building B said to have south-facing balconies Mr Harrison said that the balconies do not in fact face south, with the site being skewed 45° off north. Also whilst not having an entirely favourable orientation, sunshine will still be available to southwest facing balconies in the afternoons. In this context he observed the problematic location of living room bay windows in Buildings A and B, which do not allow for sufficient furnishing flexibility. The design has since been amended to resolve this concern. As for the privacy concerns he noted that the proposal provides for the utilisation of translucent glazing in appropriate locations. 38 Regarding the accessibility aspect within the adaptable units I note that Accessibility Solutions Pty Limited has prepared an accessibility report. That report concludes that the proposed development complies with all essential and the majority of first priority undesirable and desirable design requirements to satisfy the relevant adaptable housing category. In this context Mr Harrison was satisfied with the proposal noting that those adaptable units having internal stairs comprise 4 out of a total of 11 such units and with minor modifications these can be totally accessible except for one bedroom. He was satisfied that the adaptable units would comply with AS 2499 Adaptable Housing. 39 In relation to the issues involving criticism of certain internal planning arrangements I agree with the conclusions reached by Mr Harrison for the reasons he has given. Whilst the close proximity of living rooms to access walkways and the utilisation of translucent glazing to resolve privacy concerns are not optimal, design solutions, what is here proposed is not critical to the application. Site consolidation and the landmark building site 40 Having failed to incorporate the two corner lots, which have a combined area of 706 sq m, into the site of the proposed development, the question arises as to whether the land consolidation requirements in s 1.5 of the DCP have been met. 41 Section 1.5.2 requires that in order to achieve the optimal use and development of the Warne Place site the allotments therein should be consolidated. Such consolidation may be achieved by way of amalgamation of all the land within the Warne Place site or by way of land pooling by agreement between landowners. More particularly consolidation is achieved when control is obtained over an area greater than 7500 sq m. The site has an area of some 7400 sq m and therefore fails to meet this requirement by about 100 sq m. 42 The DCP also provides in s 1.5.2 that partial consolidation may be acceptable: where it is clear that amalgamation or a land pooling agreement over all of the (Warne Place) site is made impossible by one or other land owner holding out against such a scheme of arrangement, or is, in the opinion of the council withholding owners' consent unreasonably. 43 In exercising such discretion, council:

· must decide whether a floor space ratio less than the maximum permitted shall apply to part or all of the site, · shall consider and then direct the way development may be suitably staged, · shall be satisfied that all other provisions of this DCP are still achievable as intended. 44 Section 1.6.3 of the DCP also recognises that less than full consolidation can be acceptable, providing as it does a sliding scale of floor space ratios that increase with the extent of consolidation. A maximum floor space ratio of 1.5:1 is available for a fully consolidated site. A reduced floor space ratio of 1.2:1 is available for the subject site and this has been complied with. 45 The staging of the proposed development was not raised as an issue either generally or in the context of site consolidation. Other requirements of the DCP are discussed above and although there are some non-compliances, these are not such as to warrant a refusal of the application. 46 In dealing with the question of whether complete amalgamation has been made impossible the applicant provided the Court with two affidavits sworn by Miss L Martin. These affidavits detail the negotiations between the applicant and the owners of 527 and 529 Illawarra Road. These negotiations involve offers by the applicant to purchase these properties for amounts well in excess of $1 million and other considerations that were, in the end, unsuccessful. 47 Without evidence to suggest that the offers made by the applicant were not reasonable, I accept that the absence of a complete consolidation of the site is not a fatal consideration. It was suggested that the owners of the two properties (the subject of the negotiations) should have been advised that as a consequence of this development going ahead their properties might be subject to a significant devaluation. However, one cannot be certain that the owners of these properties were not already aware of this reasonably obvious likelihood. Whilst such knowledge may have been to the advantage of the applicant in terms of achieving a lower and thus acceptable purchase price and may have been of assistance in achieving consolidation I do not accept that this is, in the circumstances of this case, a reason to conclude that the application should be refused. 48 A further concern also arises as a consequence of the two lots at 527 and 529 Illawarra Road not having been included in the consolidated site. Section 3.1 of the DCP identifies in Fig. 7 the location for a "landmark building" on the corner of Illawarra Road and Thornley Street. Such a building is required to:

… fulfil a recognised, designated urban design role such as terminating a vista, reinforcing a block street corner or forming part of a genuine gateway element. 49 The "landmark building" (also referred to as a "gateway marker" in s 1.3.9) is exempt from the otherwise applicable setback requirements and is to be set to the boundary for distances somewhat in excess of 30 m from the intersection. Figure 7 indicates that these two lots comprise about half of the frontage indicated for the landmark building along Illawarra Road and all of the indicated frontage along Thornley Street. 50 It was suggested that as a result of these lots being excluded from the subject development proposal, such a "landmark building" might not be able to be designed for the residual corner site. 51 Mr Harrison was of the opinion that not all of the Warne Place site is required to be consolidated by one development for the purposes of the DCP. Also, the residual corner lots are together large enough to be developed separately with an underground car park accessed through the subject site. Also the design of the proposed development is such that it will not compromise and will not be compromised by the separate development of these lots that are large enough to accommodate a landmark building. 52 Whilst it would be preferable for the development of these two properties to be carried out in conjunction with the subject development, I do not agree that this is fatal to the subject application. I accept the evidence of Mr Harrison that the two lots, having a total area of about 700 sq m, can be developed appropriately in response to the requirements of the DCP. I also agree that the development of these properties would, even taking into account the design of the subject proposal, would be able to meet the landmark building requirement of the DCP. In this context I note that had these lots being incorporated into the subject application, this would have resulted in the site being fully consolidated with a consequentially available floor space ratio of 1.5:1. In my opinion it would not be unreasonable to allow these two lots to be developed at least to a floor space ratio of 1.5:1. Traffic impacts 53 A number of residents expressed concerns in relation to the ability of Illawarra Road to cope with the additional traffic generated by the development that will exit via Warne Place. Because of the difficulty in turning right along Illawarra Road from Warne Place, traffic will tend to instead turn left then turn left again at the Thornley Street intersection and thence find its way through residential areas towards Warren Street where a right turn can be executed into Illawarra Road. 54 In dealing with this issue it is of particular relevance to note that s 3.8.2 of the DCP requires that vehicular access to and from the Warne Place site is to be restricted so as to be solely off Roseby Street/Warne Place. It is also relevant to note that if the site were to be developed to the maximum extent as indicated by the 1.5:1 floor space ratio the consequentially generated traffic would be considerably in excess of what is proposed. 55 In his report Mr Rogers considered the traffic likely to be generated by the proposal in the context of existing traffic flows and the existing operation of intersections along Illawarra Road. He calculated that traffic flows on Illawarra Road would increase to a minor extent and that the intersections would continue to operate at a satisfactory level. More particularly it was his opinion that the intersection between Warne Place and Illawarra Road would operate satisfactorily. He explained that it would be unlikely that traffic would turn left out of the site in preference to turning right. However should some vehicles choose to turn left and filter through the residential areas the increase in the number of vehicles would be minor and would not result in any change in the amenity or operation of these roads. 56 Mr Harrison agreed with Mr Rogers, commenting that whilst there will be a minor increase in passenger vehicle trips, these will have a lesser impact by comparison with the truck movements generated by the existing use of the site. 57 Whilst I can understand the concerns of the residents which are based on their local knowledge, taking into account the expert evidence of Mr Rogers and the provisions of the DCP, I do not accept that the consequences of the additional traffic generated by this development would be such as to require the refusal of the application. Overdevelopment of the site 58 Section 1.6.3 of the DCP adopts the floor space ratio standards contained in the LEP, which are specifically applicable to the Warne Place site. In particular a floor space ratio of 1.2:1 is available for a parcel of land greater than 6,000 sq m where the site is not fully consolidated. Having a floor space ratio of 1.19:1 the proposed development meets this requirement. Indeed it is relevant to note that having an area of some 7,400 sq m this is about 1,000 sq m deficient of a totally consolidated site (including Warne Place and Roseby Street) or about 100 sq m deficient of an otherwise consolidated site (i.e the 7500 sq m referred to in s 1.5.2) of the DCP which would entitle the applicant to have a floor space ratio of up to 1.5:1. In this context I note that Mr Harrison believed that the proposal could be considered to be an underdevelopment of the site. 59 It is also to be noted that the building footprints of the proposal are smaller than those shown in the DCP resulting in their being more open space and less building bulk and mass. The site coverage, common open space and landscaped area requirements in the DCP are met by the proposal. Taking these matters into consideration together with the floor space ratio consideration and the traffic conclusions I have no difficulty in reaching the conclusion that the proposal does not comprise an overdevelopment of the site. Objections and public interest 60 Whilst the council relied on the "overwhelming opposition" to the proposal as a reason for refusal this is not a matter that should attract any determinative weight in the determination of this application. As Talbot J. said in Port Stephens Pearls Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 426 at 72 and 73: The community response to a proposal must be taken into account as part of the consideration of the public interest pursuant to s 79C(1)(e) of the EP&A Act. However, where the opinions expressed are not supported by evidence objectively expressed by experts in a particular field of expertise, then the views of those who do not have the essential expertise will be given little or no weight or, at the most, less weight than the expert opinion.

It would be a political exercise to give determining weight to the number of objections based solely on the quantitative value of that evidence. That is not a value this Court is entitled to adopt.

61 Clearly the wider public interest must be distinguished from resident objections and whilst such objections need to be taken into consideration, this must be done in the light of the expert evidence. In this context I have not been persuaded by those objections and have concluded that on balance approval of the proposal would not be contrary to the public interest, taking also into account the applicable planning controls, which are themselves indicators of the public interest.

62 The vision for the site as described in the DCP comprises a holistic development resulting from the consolidation of the site. Such development needs to be distinctive and well integrated. This vision is to be achieved through the provisions of the DCP and whilst the proposal does not completely comply with all of the particular requirements I am satisfied that the non-compliances are not fatal to the application. I have therefore decided that conditional development consent should be granted.

63 The applicant objected to a number of the conditions as proposed by the council and as a consequence a number of changes were agreed to. In dealing with the conditions in dispute and formulating the final set of conditions to be attached to the consent I have considered the arguments presented in final submissions. I have also added a new condition relating to Building B that deals with privacy and a new deferred commencement condition providing for commemorative plaques.

64 It is therefore the decision of the Court that the appeal be upheld and the following orders made: 1. The appeal is upheld.

2. Development application No. 200500098 for the demolition of existing buildings, site remediation and the construction of a residential flat complex at 525 Illawarra Road, Marrickville, is determined by the granting of development consent subject to the conditions in Annexure A hereto.

                      T A Bly
                      Commissioner of the Court
                      rjs

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