Architects Becerra v Council of the City of Sydney

[2014] NSWLEC 1250

Land and Environment Court

New South Wales

Medium Neutral Citation:

Architects Becerra v Council of the City of Sydney [2014] NSWLEC 1250

Hearing dates:

27 November 2014

Decision date:

27 November 2014

Jurisdiction:

Class 1

Before:

Fakes C

Decision:

Appeal upheld

Consent granted to Development Application No. D/2013/1461for the construction of a residential flat building and associated works at 1 Sparkes Lane, Camperdown in accordance with conditions of consent.

Catchwords:

DEVELOPMENT APPLICATION: Residential flat building; height control, overshadowing, building separation, privacy.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development
Sydney Local Environmental Plan 2012

Cases Cited:

Blackmore Design Group Pty Ltd v Manly Council [2014] NSWLEC 1180

Category:

Principal judgment

Parties:

Architects Beccara (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Applicant: Mr M Staunton (Barrister)
Respondent: Mr A Singh (Solicitor)
Applicant: Sattler & Associates Pty Limited
Respondent: Council of the City of Sydney

File Number(s):

10563 of 2014

Judgment

1. COMMISSIONER: The applicant appeals the Council of the City of Sydney's refusal of Development Application D/2013/1461 for the construction of a 6 storey residential flat building consisting of 11 apartments, 2 car parking spaces, 3 bicycle parking spaces and a landscaped pedestrian through link at 1 Sparkes Lane, Camperdown.

1. Following a conciliation conference held in accordance with s 34 of the Land and Environment Court Act 1979 (the Court Act) on 9 October 2014, the applicant filed a Notice of Motion seeking leave to rely on amended plans. The amendments seek to address a number of issues raised by council in its Statement of Facts and Contentions. The amended plans were provided to residents who had made submissions opposing the development.

1. The matter resumed on site on 27 November 2014 and the Court and the parties had the opportunity to hear from a number of nearby residents. The concerns raised by the residents are summarised as:

• Loss of sunlight to the rear private open space of 14 and 18 Sparkes Street, Camperdown;
• Excessive height, bulk and scale in the context of the site's proximity to a heritage conservation area and two heritage listed terraces;
• Materials and finishes not in keeping with the nearby heritage items and conservation area;
• Visual impact of a tall building adjoining smaller buildings;
• Privacy and overlooking issues;
• Noise and access issues during and after construction; and
• Potential for flooding of 2A Short Street if building inadequately engineered.

1. As there was no delegated authority for the council to enter into an agreement, the matter returned to court and the s 34 conciliation was terminated in accordance with s 34(4) of the Court Act. Pursuant to s 34(4)(b)(ii) of the Court Act, the parties agreed to me disposing of the matter on the basis of what occurred during the conciliation conference.

1. The Notice of Motion was heard. The council did not oppose the motion, and the applicant was granted leave to rely on the amended plans. As the amendments were more than minor, an order was made under s 97B of the Environmental Planning and Assessment Act 1979 (the Act) for the applicant to pay council's costs thrown away, as agreed or assessed.

1. Amongst other things, the amended plans remove the top storey, reduce the number of units from 11 to 10, provide a mixture of 7 x 1 bedroom and 3 x 2 bedroom units, provide four car parking spaces and 12 bicycle spaces; and make architectural changes to reduce the impact on adjoining properties.

The site and its locality

1. The site is a generally triangular lot of 295m2 at the south-eastern end of Sparkes Lane, Camperdown. Sparkes Lane is a no through road off Larkin Street. The site has a 5m frontage to the lane.

1. The site is currently vacant with a number of trees and shrubs along the eastern boundary. It is burdened by a Sydney Water drainage easement for an underground stormwater channel to Orphans School Creek.

1. The site is not a heritage item and is not located within a heritage conservation area however the site adjoins 14 Sparkes Street which is listed, as is 12 Sparkes Street, as a heritage item (terrace house) under Sydney Local Environmental Plan 2012 (SLEP). The Hereford and Forest Lodge Conservation Area adjoins the site to the north and east.

1. Surrounding uses are residential and commercial. To the north are a 3 storey residential development and a warehouse. Low density terrace houses adjoin the site to the east. Other nearby development comprises mostly contemporary residential flat buildings with other mixed use development including adaptive reuse development.

Relevant planning controls

1. The site is zoned B4 Mixed Use under SLEP 2012. The proposal is permissible with consent.

1. Clause 4.3 Height of Buildings in SLEP and the Height of Buildings Map allows a maximum height of 18m. The relevant objectives in cl. 4.3(1) are:

(a) To ensure the height of development is appropriate to the condition of the site and its context,

(b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas,

(c) to promote sharing of views,

1. Clause 4.6 SLEP provides a mechanism for providing an appropriate degree of flexibility in applying certain development standards. Clause 4.6(3) requires consideration of a written request from an applicant demonstrating that compliance with a development standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the standard.

1. The permitted floor space ratio for the site is 2.5:1 under SLEP.

1. Amongst other things, Sydney Development Control Plan 2012 (SDCP) provides a building height in storeys control of 5 storeys.

Issues

1. Council's initial contentions were that the proposal should be refused on the following grounds:

• Non-compliance with the 18m height control in SLEP and consequential excessive bulk and scale;
• Adverse streetscape and amenity impacts on adjacent properties;
• Unacceptable overshadowing of adjoining properties;
• Unsatisfactory levels of amenity for future residents in respect of common and private open space;
• Inadequate separation between buildings creating overlooking and privacy impacts;
• Inadequate provision of bicycle parking; and
• Not in the public interest.

1. As a consequence of the amended plans, the parties' planners - Mr Andrew Martin for the applicant and Mr Kerry Nash for the council, prepared a joint report in which they addressed council's contentions. For the reasons outlined in the joint report, the planners reached agreement on all matters and concluded there were no town planning issues warranting refusal of the proposal.

1. While the parties agree there are no longer any contentions that would require refusal of the proposed development, in exercising the function of the Court in these matters, I must consider the relevant matters in s 79C of the Act. To this end, I was taken to the evidence relating to each of the contentions and the matters raised by the objectors. Each issue is considered in turn.

Building height - contention 1

1. The amended plans remove the top storey from the original proposal. The extent of non-compliance has been reduced to minor elements of the building including the lift overrun (+ 0.87m) and the (front) north-western portion of the building (+0.57m).

1. The council considers the exceedence of the height control is very minor and accepts the planners' agreed position that there are no detrimental impacts on adjoining properties as a consequence of the non-compliant elements.

1. The applicant prepared a new cl. 4.6 request for a variation to the height control. I have read and considered the written request and I agree with the planners' position that there are sufficient environmental planning grounds to justify the minor contravention of the development standard.

1. While many of the objectors remain unhappy with the height of the proposed development, I agree with the planners that SLEP allows a height limit of 18m and is in accordance with the desired future character and strategic planning objectives anticipated in the LEP. While the heritage items immediately to the west are subject to a 9m height control, both the height of buildings map in SLEP and the height in storeys map in SDCP indicate the area to the south, north and west beyond the heritage items are permitted to have a maximum height of 18m and a 5 storey limit. The area to the east and northeast has a height control of 12m and a 3 storey limit. Therefore I agree that the council has anticipated the height transitions in the immediate area - including the heritage conservation area and the heritage items.

1. In regards to concerns about bulk and scale, the planners note that the amended plans achieve a floor space ratio of 2.0:1 which is well below the permitted FSR control of 2.5:1. I concur with their finding that the bulk and scale of the building are appropriate in the circumstances.

1. To that end, I am satisfied that the proposal achieves the relevant objectives for height control in SLEP. Given that the non-compliant elements will have no adverse impacts on adjoining properties I find that strict compliance with the standard is unreasonable and unnecessary in the circumstances and there is no reason to refuse the appeal on this basis.

1. For the record, the applicant notes that the original proposal was supported by council's assessing planning officer, albeit on the basis of a voluntary planning agreement in regards to public access along the eastern boundary. The applicant also notes that the officer supported the original cl. 4.6 variation request as the proposal met the relevant objectives.

Overshadowing - contention 2

1. A supplementary overshadowing analysis based on the amended plans was prepared by Mr Steven King and considered by the planners in their joint report.

1. The DCP considers the amount of direct sunlight between the hours of 9.00 am and 3.00pm on 21 June. The amended proposal increases solar access to the private open space of 18 and 22 Sparkes Street, and to the northern glazing of 22 Sparkes Street. Solar access to both the glazing and private open space of numbers 18, 20 and 22 Sparkes Street complies with the relevant controls in SDCP.

1. The extent of non-compliance is limited to the rear private open space of 24 Sparkes Street, which will receive 1.5 hours of direct sunlight rather than the 2.0 hours specified in the DCP. The dwelling itself receives 3.5 hours of direct sunlight and is thus compliant.

1. In order to achieve compliance, the development would have to be reduced in height by another three storeys. Council agrees that this would be unreasonable given the zoning and height controls that apply to the site. Council no longer presses this contention.

1. In support, the applicant cites Blackmore Design Group Pty Ltd v Manly Council [2014] NSWLEC 1180 at [42] where Tuor C found in similar circumstances that significantly reducing the dimensions of a development to retain solar access for studio units would unreasonably limit the development potential of the site given the height and FSR controls that applied to the site.

1. In regards to the oral submissions made on site by the owners of 14 and 18 Sparkes Street, the amended proposal achieves compliant solar access for their properties. For number 14, the council submits there is no overshadowing after 12.30pm as a consequence of the proposal.

1. While a DCP must be a focal point of consideration of the issues, s 79C(3A)(b) of the Act requires flexibility in applying the provisions of a DCP. In the circumstances of this matter, strict compliance with the solar access controls is unreasonable and unnecessary and I agree with the parties that and the appeal should not be refused on this basis.

Amenity - landscaping, common and private open space - contentions 3 & 6

1. The amended plans provide adequate common open space, most of which is directly accessed from the ground level car parking area. Detailed landscape plans are included in council's bundle.

1. The DCP requires at least 75% of the units to have private open space; the amended plans show 90% of the units with balconies. While some of these are relatively small, the planners agree that they are acceptably dimensioned and therefore functional.

1. The council no longer presses this contention and I agree that this is not an issue that warrants refusal of the proposal.

Building separation - privacy and overlooking - contention 4

1. The council originally contended that the proposal did not satisfy the building separation requirement in State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65).

1. It is agreed that the triangular shape of the lot and its physical relationship with surrounding development make strict compliance with the control in SEPP 65 very difficult. Council is satisfied that the architectural changes in the amended plans, including deletion of the front balcony from unit 1, strategic placement of windows, fixed privacy screens and smaller balconies, as well as increases in side setbacks, will provide acceptable levels of amenity for adjoining properties.

1. The redesign of the western façade to include highlight windows improves the proposal from an urban design perspective. The windows are high sill windows above kitchen benches and therefore the potential for overlooking into properties to the west is very limited.

1. While some residents remain concerned about potential privacy and overlooking, any compliant building on the currently vacant site would result in some overlooking. However, I am satisfied on the evidence that the separation distances are acceptable in the circumstances and the proposal should not be refused on this basis.

Bicycle parking - contention 5

1. The amended plans show a compliant level of 12 spaces and this contention is no longer pressed.

Public interest - contention 7

1. In the summary of submissions made to council opposing the original proposal, the assessing officer concluded that the proposal would have no detrimental effect on the public interest, subject to the imposition of appropriate conditions of consent (folio 300, Exhibit 2).

1. In regards to the amended proposal, the planners agree that the proposal is in the public interest as it achieves the built form intent and strategic planning outcomes sought by SLEP 2012. In addition they agree that the development provides adequate solar access to properties to the south and reasonably preserves the privacy and amenity of adjoining properties.

1. To the extent that the public interest is reflected by the concerns of objectors, I am satisfied there is no evidence to support any of these issues being grounds for refusal however, several issues raised by residents are incorporated into the proposed conditions of consent.

1. While heritage issues were raised by a number of objectors, heritage was not raised by council. The applicant's heritage consultant prepared a heritage report which was reviewed and assessed by council's heritage specialist.

1. Council's heritage specialist concluded that the (original/larger) proposal would have "minimal heritage impact on the adjoining Hereford and Forest Lodge Conservation Area as there are other residential flat buildings within the vicinity of the site". In addition "the new six storey building will have some visual impact on the nearby two storey heritage listed terraces in Sparkes Street. However the new building can be supported.."

1. Objectors also raised concerns about noise and traffic congestion during construction. Condition 51 requires a Construction Traffic Management Plan (CTMP) to be submitted. During the hearing the condition was amended to require the CTMP to include the mobile phone number for a person who can make immediate arrangements for the clearance of Sparkes Lane should there be problems for residents entering or exiting the lane. Other conditions of consent deal with noise during and after construction.

Conclusions and orders

1. Having had the benefit of inspecting the site, hearing from the residents, participating in the conciliation process, and considering the evidence in the joint planning report, I am satisfied to the extent required by s 79C(1) of the Act that the amended proposal: is generally compliant with the relevant environmental planning instruments and other controls, is suitable for the site, will have an acceptable level of impact on the locality, and is in the public interest.

1. Therefore, the orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Application No. D/2013/1461 for a residential flat building and associated works at 1 Sparkes Lane, Camperdown is approved subject to the Conditions of Consent in Annexure A.

(3)   All exhibits except A and 1 are returned.

______________________

Judy Fakes

Commissioner of the Court

Annexure A

Decision last updated: 03 December 2014