Yugaro Pty Ltd v Waverley Council

Judgment 1This appeal is in relation to the deemed refusal of a development application (DA 646/2010) lodged on 16 November, 2010 with Waverley Council (the council) that proposed alterations and additions to an approved residential flat building. 2The main contentions in the matter are the non-compliance with the council's development controls, the impact of the development on the adjoining property and the visual bulk and scale of the additions.

The site and its context 3The site is known as Nos. 184-186 Bronte Road, Waverley (the site), is located on the eastern side of the roadway and also has frontage to Short Street, a road that functions more like a lane as it provides vehicle access to the properties fronting Bronte Road and also to St Clare's College, St Charles school, a high school, primary school and convent that occupy land on the opposite side of Short Street. No parking is permitted along Short Street and there is limited area provided as a footpath. 4Development along Bronte Road in the vicinity of the site includes Waverley Primary School, Police Station and Courthouse and a number of two and three storey terrace houses and residential flat buildings. 5The character of Short Street is mixed including the school buildings which range in height from single to five storey development, single storey garages built to the street boundary servicing those properties which front Bronte Road, a one and two storey industrial building, immediately to the north of the site, a two storey terrace house on the corner of Short and Church Streets and fences which enclose the rear yards of dwellings located to the south of the site. 6Immediately to the north of the site is a one and two storey detached dwelling on an allotment which fronts Bronte Road (No. 180) and the industrial building on a separate allotment facing Short Street. That industrial building, when viewed from the site is single storey however, when viewed from a location immediately adjacent to the building in Short Street, presents as a two storey structure due to its parapet. 7To the south of the site is an older style, three storey residential flat building comprising two buildings connected by an open staircase (No. 188 Bronte Road). A survey plan attached to the town planners' expert joint report (exhibit K) shows that the units are setback between 1.12m and 1.4m from the northern property boundary, being the common boundary with the site. Garaging for three of those units is provided in a single level building erected adjacent to the Short Street boundary. An open clothes drying area separates the garages from the flat building. 8During the site view, I observed two recently constructed buildings, both of which comprised four storeys, one a mixed use development built under existing use right provisions and the latter, a development approved under the council's Affordable Housing controls. These developments are located at Nos 173-179 Bronte Road and Nos 226-232 Bronte Road respectively. 9The site has a splayed frontage to Bronte Road of 15.47m, a rear boundary and frontage to Short Street of 13.79m and area of approximately 725sq m. The existing development on the site comprises two Victorian terrace houses that have been converted into four residential units and a garage accessed from Short Street.

Background and the proposal 10The council issued a development consent DA-95/2004 (the consent) which authorised the construction of a residential flat building on the site. The consent approved the demolition of the existing residential flat buildings (retaining the faade and front rooms only) and the erection of a three storey residential flat building containing 13 units and a basement carpark. The consent has been the subject of a number of modifications and the most current approved plans were tendered as Exhibit 8. 11The unit mix approved under the consent comprised: 4 x studio 7 x 1 bedroom 2 x 2 bedroom plus study 12The evidence provided and agreed is that the works authorised have been commenced so that the consent remains operative. That work involves excavation of part of the basement area. The original residential flat building has not been demolished at this stage. 13A subsequent development application (DA 198/2009) which sought approval for alterations and additions to the existing terrace dwellings was refused by the council and the Court, refer Y ugaro Pty Limited v Waverley Council [2010] NSWLEC 1073. 14The application presently before the Court seeks to make alterations and additions to the approved development, the main changes involving the following works:- Provision of a new attic part level at the Short Street end of the site to accommodate additional living area for two apartments; Increase in the number of units from 13 to 15; Enlargement of the basement area to accommodate parking for 11 cars; extension of the ground floor and first floors of the building to the Short Street property boundary; Reconfiguring the internal layout of Units 1, 6, 8, 11, 12 and 13 and the basement area; 15The proposed unit mix would comprise: 3 x studio 8 x 1 bedroom 2 x 1 bedroom plus study 1 x 2 bedroom 1 x 2 bedroom plus study

The planning controls 16The site is zoned Residential 2(c1) pursuant to the provisions of Waverley Local Environmental Plan 1996 (the LEP). The relevant General aims of the plan are: (b) to provide a framework for more flexible planning controls, (c) to improve the amenity, safety and environmental quality of the built and natural environment, (d) to provide for the economic and efficient use of land, (e) to ensure development proceeds in an ecologically sustainable and equitable manner, (f) to provide the opportunity for all members of the public to participate in the planning decisions of the Council, and (g) to provide an appropriate balance and distribution of land uses. 17Clause 3 of the LEP contains a number of specific aims for a range of uses. These aims must be taken into account when determining a development application. Subclause (7) relates to housing and the specific aims are: (a) to provide for a range of residential densities, (b) to encourage a range of housing types to meet the changing housing needs of the community, (c) to encourage the development of new rental housing where appropriate, (d) to ensure that new housing is compatible with surrounding development, (e) to increase the population by maintaining and increasing the number and variety of dwellings to a level which is commensurate with the capacity of the natural environment and the present and likely future social and physical infrastructure of the Council's area, and (f) to improve the amenity of residential areas. 18Residential flat buildings are permitted with consent pursuant to the provisions of clause 10 provided that the development meets one or more of the objectives of the zone. The objectives of the Residential 2(c1) zone are: (a) to allow for a variety of medium and high density housing forms, including boarding houses, dwelling-houses, residential flat buildings and townhouses, (b) to maintain and improve the amenity of the locality, and (c) to allow certain non-residential uses of low intensity which are compatible with the character and scale of the existing locality. 19Waverley Development Control Plan 2010 (the DCP) also applies to the development. Provisions of that plan relevant to the contentions are the controls for height, floor space ratio (FSR), setbacks, roof design and attic levels and solar access. The applicant has raised the affordable housing provisions of both the LEP and DCP however, I note that the application was not accompanied by a voluntary planning agreement (VPA). I also note that the consent included additional floor space due to three of the units (lots 4, 5 and 6), being considered at the time the consent was granted, 'affordable rental housing' and that the consent pre-dated the adoption by council of its current program in 2007. The evidence provided shows that the number of 'affordable' units has been reduced to two in a subsequent modification approved by the council. Further consideration of affordability is given later in this judgment.

The issues 20The matters in contention are whether: the development is consistent with the specific aims of the LEP and the objectives of the 2(c1) zone; the development is consistent with the relevant provisions of the DCP in terms of bulk, scale, setbacks and design; the impacts of the development on the adjacent property are acceptable.

The evidence 21The hearing commenced on site where I heard evidence from the chairperson of the executive committee of the adjacent residential flat building, No 188 Bronte Road on behalf of owners of units within that complex. A view of the site was undertaken, including internal inspection of units 11, 12, 9 and 3. The concerns raised were: Height of the proposal is excessive and will result in loss of sunlight and outlook, particularly to unit 11; The current approval is already excessive and results in adverse impacts to the property; Loss of privacy; Loss of amenity through noise, lighting and overlooking; Additional parking demand and traffic associated with 11 parking spaces to be provided on site; Overshadowing of clothes drying area. 22Expert town planning evidence was heard from Mr Stavis for the applicant and Mr Reid for the council. 23Mr Stavis is of the view that the development is consistent with the aims and objectives of the LEP and DCP, the council's planning controls and the earlier judgment in Yugaro 2010 , with particular reference to height, bulk and presentation to Short Street at each level. Mr Stavis compares the development to that approved by the consent and argues that the proposed development will have a net improvement to the amenity of the adjoining property to the south, No. 188 Bronte Road. 24Mr Reid disagrees and considers the development to be incompatible with the surrounding development and is too bulky, contrary to the council's planning controls, would be visually obtrusive when viewed from Short Street and is out of scale and character with development in that street. In addition, he considers the proposal is incompatible with and would have an adverse impact on the adjoining development at No 188 Bronte Road. 25The parties disagree on the FSR of the proposed development however, do agree that the FSR of the development approved by the consent is 1.22:1 and the DCP control for the site is 0.9:1. It is agreed that the proposed development has a FSR somewhere between 1.39 and 1.45:1 and that this is well in excess of that envisaged under the DCP controls. 26Mr Stavis considers that the proposed development is consistent with the character of the area, which he says is drawn from the school buildings on the opposite side of Short Street and more recent development approved to the south of the site and described in para. 8 of this judgment, as well as the desired future character for the area contemplated by the DCP. Mr Reid disagrees and says that the school development should not be used to determine the appropriate scale for development on the site due to the different zoning applying to that land (special use) and says the development should be measured against that within the block bounded by Bronte Road, Church Street and Short Street. That development is primarily one and two storey development and therefore he says what is proposed is out of scale with the locality. He also distinguishes the more recent development from that proposed saying that different circumstances applied in the assessment of those developments and accordingly, are not relevant to this matter. He does agree that the desired future character of the area is drawn from the objectives, strategies and controls contained within the DCP. 27In justifying the considerable variation to FSR, Mr Stavis considers that the affordability of the units is sufficient to allow the additional floorspace, height and non-compliance with the attic provisions of the DCP. Mr Reid takes the view that the development the subject of the application is not to be considered under the affordable housing provisions (section 4.12) as it does not include a VPA, does not pass the tests for additional floorspace contemplated by the clauses i.e. the environmental impacts of the additional floorspace must be deemed acceptable. He considers that the impacts of the additional building areas are unacceptable and accordingly, do not merit consent. Those impacts are the additional overshadowing caused from the floorspace, particularly the impact to unit 11, No 188 Bronte Road and the clothes drying area for that property and the adverse impact caused from the increased wall height of the proposal when viewed from the adjacent property. Mr Stavis argues that there is a net benefit in terms of solar access to the adjoining property when compared to the development authorised by the consent and that there is in part, an improvement to the outlook from the neighbouring property. 28A detailed shadow analysis was undertaken on behalf of the respondent (Exhibit 4). Whilst there is some dispute in relation to the conclusions drawn from those diagrams, it was agreed that the representation of shadowing impacts from both the proposed and approved developments were accurate. 29At issue was whether there should be any further impacts resulting from loss of sunlight as a result of the proposed development or whether compliance with the council's minimum requirements for solar access was sufficient. Part G2 of the DCP deals with solar access and the intent of the controls are: To preserve solar access to north facing 'solar collectors' (such collectors include windows, photovoltaic cells, solar hot water/air panels, clerestory windows etc.), private open space and clothes drying facilities in all residential development. 30The identified solar impacts are to the windows in the northern and eastern walls of the adjacent residential flat building at No 188 Bronte Road. The performance criteria set in the DCP, in relation to adjoining development is that new development will not reduce the solar access of collector/s of an adjoining property to less than two hours per day in mid-winter except solar hot water and photovoltaic panels, full access must be maintained. 31Mr Stavis says that the development will meet the requirements of the DCP in that all of the windows affected by the development will receive the two hours minimum sunlight and in some cases there is a net improvement to windows compared to the impacts caused from the originally approved development. Mr Reid says that there should be no loss of solar access on the basis that the DCP requires that solar access is to be 'preserved' and that the additional impact is unreasonable and unacceptable because it arises directly from building height and bulk that will grossly exceed the maximum permitted FSR on an existing building that already substantially exceeds the maximum permitted FSR. 32In regard to outlook, Mr Stavis says that there is an improvement to the outlook from the living room window of unit 11, No 188 Bronte Road through the altered roof profile. Mr Reid does not agree with the methodology adopted by Mr Stavis in that the view considered is that looking directly towards the site whereas, Mr Reid considers the impact is beyond that view line and is therefore a poorer outcome due to the increased wall height of the attic level. The evidence provided shows the outlook from the kitchen of that unit is compromised.

Conclusions and findings 33Much of the applicant's evidence in these proceedings, particularly in relation to the design of the development, has relied on the earlier judgment of this Court in Yugaro 2010. In accordance with the authorities established in Segal & Anor v Waverley Council [2005] NSWCA 310, I am neither bound to follow that decision, nor, to take into consideration if I consider it irrelevant, the resolution of the principal contested issue. I do acknowledge the importance of consistency and also the need to consider the particular circumstances of this case. Accordingly, I have undertaken a full merits review of the application before me. 34Similarly, the applicant's evidence relies on a comparison of the approved development with that proposed. This application is for the alterations and additions to an approved residential flat building only. Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979 requires an assessment of the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality. 35Accordingly, I am limited to the impacts of the proposed development and my decision is based on those impacts only. The applicant has chosen to submit an application for alterations and additions rather than to redesign the entire building which would have widened the assessment criteria. It may also have allowed the development of a proposal which would address the impacts of the development raised by the council. 36With regard to the visual impact of the development when viewed from Short Street, I agree that the stepping of the development is appropriate and sits within the council's planning controls. I note that the decision of Murrell C in Yugaro 2010 found against that application on the determinative basis of the imposing impacts of the proposal when viewed from Short Street which she considered to be inappropriate in the context, would dominate the laneway due to the bulk of the building increasing with its height. As this was the determinative issue, she did not consider further the merits of the application or the impacts of the proposed development. It is necessary that I take those subsequent steps. 37Whilst I accept the design of the development provides a more appropriate presentation to Short Street, I do not agree that the bulk and scale of the development is consistent with the aims of the council's LEP and DCP in that it will have an adverse environmental impact on the adjoining property. I accept that the siting of the adjoining residential flat building in such close proximity to the northern boundary contributes to the likelihood of loss of solar access and outlook as properties are redeveloped however, there is an expectation within the community that those impacts are limited to development that either fully complies with the council's standards or is consistent with the design objectives of those controls. 38It is clear that the proposed development results in impacts to some of the units at No. 188 Bronte Road that were not previously subject to any solar loss. There was a great deal of discussion in relation to the "net benefits" to units as a result of the application when it was compared with the development consent. It is apparent to me that those "benefits" are based on a purely quantitative basis rather than a qualitative basis and accordingly, do not meet the tests established by the objectives of the council's controls. I further note that the said benefits to some of the solar access gained to the northern walls is offset by comparable loss to east facing windows so that the overall impact of the development remains unsatisfactory. 39This application proposes a further increase to the floor space of the building from that approved by the original consent to an extent that the variation from the council's controls is in the vicinity of 50%. That additional floor space comes at the cost to adjoining property owners who will experience a loss of amenity, environmental quality and outlook and is therefore not compatible with the surrounding development. This is contrary to the specific aims of the council's LEP and contrary to the objectives of the 2(c1) zone. 40With regard to the acceptability of the development if the affordable housing provisions in section 4.12 of the DCP were applied, I prefer the evidence of Mr Reid. Mr Reid advised that for any "bonus" to be applied, the ultimate development would have to satisfy the initial test of no adverse impacts on the environmental amenity of neighbouring properties or the surrounding areas. I agree with his submission that the development fails in this regard. 41Irrespective of the development not providing affordable housing by way of a voluntary planning agreement as detailed the DCP, I note that the development actually reduces the number of studio units from 4 to 3 and increases the proportion of larger units (one bedroom plus study) from 15% of the unit total to 26% of the unit total. I have no evidence that the sale price or rental rate of any of the units will fall within the criteria of "affordable housing" and accordingly, this case is distinguished from the findings of Pearson C in Pan Pacific Property Group Pty Ltd v Waverley Council (2) [2010] NSWLEC 1041 in that there is no evidence to show the development proposed will be "affordable" nor does the unit mix suggest that the size of units is such as to ensure their affordability. For this reason, I reject Mr Stavis' argument that any bonus that may apply in relation to additional floorspace or variation to setbacks or other controls should be considered and I accept Mr Reid's contention that the application fails the initial hurdle of compliance with all other relevant provisions and merit considerations held within the DCP. 42I find that the proposed alterations and additions to an approved residential flat building do not satisfy the aims and objectives of the council's LEP and DCP and would have adverse and unreasonable environmental impacts on adjoining development. I apply the criteria for assessing the impacts of the development on neighbouring properties as set out in Pafburn v North Sydney Council [2005] NSWLEC 444 and in particular the view in para. 24 that: 24. The fifth theme is that an impact that arises from a proposal that fails to comply with the planning controls is much harder to justify than one that arises form a complying proposal. People affected by a proposal have a legitimate expectation that the development on adjoining properties will comply with the planning regime. 43For the reasons outlined above, the application must fail. 44The orders of the court are: (1)The appeal is dismissed. (2)Development application DA 646/2010 for the construction of alterations and additions to an approved residential flat building at Nos. 184-186 Bronte Road, Waverley is determined by the refusal of development consent; and (3)The exhibits other than exhibits 1 and C are returned. Sue Morris Commissioner of the Court

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: 10 May 2011