Bakara Developments v Sydney City Council

[2005] NSWLEC 567

Land and Environment Court

of New South Wales

CITATION:

Bakara Developments v Sydney City Council [2005] NSWLEC 567

PARTIES:

APPLICANT
Bakara Developments
RESPONDENT
Sydney City Council

FILE NUMBER(S):

10482 of 2005

CORAM:

Tuor C

KEY ISSUES:

Appeal :- s96 application to modify consent for mixed used residential/retail building.
parking requirements
privacy and noise impacts on adjoining residents

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1997

CASES CITED:

Superstudio v Waverley Council [2004] NSWLEC 91

DATES OF HEARING:

19-20/09/2005

EX TEMPORE JUDGMENT DATE:

09/22/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay, barrister
SOLICITORS
Macquarie Lawyers

RESPONDENT
Mr A Pickles, barrister
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

22 September 2005

10482 of 2005 Bakara Developments v
Sydney City Council

JUDGMENT

1 Commissioner: This is an appeal against the deemed refusal by Sydney City Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act (the Act) to modify the approved development (U01/01276) at 612-622 King Street, Newtown (the site).

Background

2 On 9 April 2003 South Sydney Council granted deferred commencement consent subject to conditions for the demolition of the existing building and the construction of a building containing three retail shops and twenty-three residential units.

3 The s96 application seeks to amend the approved development. A number of the proposed amendments were not opposed by either council or the residents. The changes that were in dispute in the Statement of Issues were:

(a) reconfiguration of the basement level parking area to allocate three visitor spaces for residential use and one visitor space to disabled parking for both visitors and residents and for use as a car wash bay;
(b) modification of condition (A1)(1)(c)(ii) requiring the installation of two metre high glazed panels on the balconies of all units on levels two and three;
(c) deletion of condition (A1)(1)(c)(iv) requiring a 12 m separation distance between the balcony edge and the nearest wall plane of 203 Rochford Street, Erskineville;
(d) enlargement of the northern balconies of units 3.02 through to 3.07;
(e) conversion of a roof to a terrace adjoining units 3.02 and 3.07.

4 As a result of the amendments agreed between the planning experts, Mr T Moody for the applicant and Mr S Greville for the council, and the Court-appointed noise expert, Mr Atkins, only proposals (a) and (e) remained in dispute between the parties.

5 The residents generally did not support the changes and raised concerns about the process that occurred, particularly that the amendments were already built despite no approval, and that the s 96 application sought to delete changes that the applicant had previously agreed to as part of the consultation process that had occurred prior to the approval of the application.

6 Despite the agreement between the experts, I will address each of the proposed changes and the resident’s concerns.

The carpark

7 In relation to the changes to the car parking arrangement, South Sydney Development Control Plan 1997 (DCP 1997) and South Sydney Development Control Plan 11 (DCP 11) set out the level of parking for specific land uses and their design standards. Both DCP 1997 and DCP 11 include objectives that seek to reduce car dependency. In particular DCP 11 includes objectives:

to encourage a reduction in the level of vehicular travel in South Sydney by reducing parking requirements and improving facilities for pedestrians, cyclists and public transport users:

to ensure that an acceptable level of parking is provided on-site to minimise the unreasonable overflow of parking into surrounding streets.

8 Section 1.3 explains that:

Previously, new development had been required to provide car parking and servicing to satisfy all of the parking demand created by development. Facilities for non-motor vehicle transport were not specifically required. Council’s Strategy for a Sustainable City of South Sydney, and hence these Guidelines propose a new, less car-focused approach.

The parking rates of these Guidelines offer a balanced compromise by satisfying a large proportion of parking demand on site, addressing car reduction objectives of council’s Strategy and minimising the unreasonable overflow of parking into surrounding streets.

It is important to appreciate that the parking rates do not represent a code that should be blindly adhered to. Rather, they are generalised rates that would achieve the above objectives in most circumstances. Applications are assessed under a system of merit of weighing up the balance of differing issues. There is scope, both considering the issue in isolation and considering the project holistically, for the parking provision to be flexible to suit particular circumstances and local conditions.

However, any departure from the Guideline rate must be adequately explained and justified by an applicant if the proposal is to be supported.

Notwithstanding this, any provision above the Guideline rates will not generally be favoured and would be penalised by any internal parking space and access to it being added to floor space, with the end result of increased floorspace ratio.

9 The proposal as approved complies with the parking rates in DCP 11. The s 96 application seeks to re-allocate visitor parking to residential.

10 Mr Coady, traffic expert for the applicant, considered the proposal to be acceptable on the basis that:

i. the parking rates did not reflect the demand for parking, the average demand for parking likely to be generated by the residential component of the development as the figures were based on a local government area wide assessment which included a number of older residential flat buildings which would have no parking.

ii. Consequently units in the development were likely to be purchased or rented by people that have a car but for which no car space is allocated. This would therefore create demand for on street parking spaces in the surrounding streets.

iii. As a principle it is a more desirable traffic and planning outcome to accommodate long stay parking, i.e. resident, on site as opposed to short stay, i.e. visitor.

iv. Visitor parking in a basement is not likely to be used due to the difficulty in accessing the site through the surrounding street network and is often utilised by residents.

v. The survey undertaken indicates that there is plenty of on street parking within the immediate area that can be utilised by visitors.

11 The DCP recognises that the parking rates should not be blindly adhered to and that the availability of on street parking spaces should be considered for use as visitor parking. However, the DCP also states that parking in excess of the rate will not generally be favoured and would be included as floor space.

12 I do not accept Mr Coady’s evidence as it is premised on the assumption that the parking rates in the DCP do not reflect the average parking demand likely to be generated by a development of this type. However, this is not supported by surveys or documentation of demand in other developments. DCP 11 is clear in that it seeks to limit the amount of parking provided for particular uses. It does not anticipate that each unit will be provided with a car space.

13 While some purchasers or renters may have cars and no car space, this is a situation envisaged by the DCP. Based on Mr Coady’s surveys there is ample space in the surrounding streets to accommodate parking for visitors. As a large proportion of these car spaces are not restricted there would also be ample space to accommodate three residential spaces on street.

14 Although I can see the logic in Mr Coady’s argument that it is better for long stay places to be accommodated off street than short stay, this is not a principle articulated in DCP 11 and is not sufficient justification for the development to provide no visitor parking spaces and residential spaces contrary to the DCP requirements.

15 The issues raised by Mr Coady are essentially planning issues that would need to be addressed at a strategic level and would not be different for other developments in the vicinity.

16 While there may be problems with accessing and utilising visitor parking spaces, the DCP clearly requires visitor spaces. I do not consider that the arguments put forward by Mr Coady justify the conversion of these spaces to residential use.

Glazed screens/separation distance

17 Condition (A1)(1)(c)(ii) requires two metre glazed screens on the balconies of levels two and three. This is related to condition (A1)(1)(c)(iv) which requires a 12 m separation from the balcony edges to the building at 203 Rochford Street. I shall therefore consider these matters together.

18 The proposed screens were required specifically for acoustic reasons and were not required to be obscure glass or to mitigate any privacy impact. The 12 m separation of the balconies would result in the trafficable area of some of the level 2 balconies being restricted to prevent overlooking and minimise noise. Mr Atkins’ assessment was that only units 2.01 and 2.02 require acoustic treatment. The terraces, if trafficable, are within 12 m of the adjoining property 203 Rochford Street. Mr Atkins considered that to achieve an appropriate noise level from a 12 m separation, a 1.5 m high screen should be provided.

19 Mr Moody and Mr Greville agreed that there was no basis for the trafficable areas of these balconies to be reduced as the combined effect of the screen (which they recommended be increased to 1.6 m), the obscure glazing and the planter boxes would ensure appropriate visual and acoustic privacy.

20 Mr Moody and Mr Greville also considered that the proposed screens to the other units were not required for privacy reasons due to the degree of separation of the terraces from adjoining residential properties. They recommended that the glazed balustrade to levels three and four should be obscure glazing.

21 The residents considered that the conditions should remain and that the degree of overlooking that they would experience and the cumulative noise impacts would be unreasonable, particularly if the trafficable areas of the terraces were not restricted. The residents were also concerned that these conditions had arisen as part of negotiations regarding the development and they considered it to be inappropriate that the applicant should now seek to have the conditions removed.

22 While I understand the residents’ concerns about the process that they participated in over a long period of time, it is open to the applicant to seek to have the conditions amended, and it is the reasonableness of the conditions and their necessity to mitigate impacts of the development that the Court must assess. By way of comment, the agreed position of the parties was that the two conditions in question were not recommended as part of the council officer’s assessment of the application at the time of determination but arose from council’s consideration of resident concerns.

23 Again I can understand that the residents will feel that the number of balconies will result in unacceptable overlooking and noise levels which will impact on their amenity. The question is whether this is reasonable given the planning controls.

24 Section 4 of DCP 1997 deals with visual and acoustic privacy. The performance criteria are that: in relation to visual privacy:

Visual Privacy
The main habitable areas and private open space are designed to be protected from direct overlooking by building layout, location and design of windows and balconies, screening devices, distance and landscaping.

Acoustic Privacy
Site layout, building design and construction protect internal living and sleeping areas from high levels of external noise and minimises the transmission of sound through the building structure.

25 To achieve these criteria DCP 1997 indicates a desirable separation between developments of 12 m.

26 The proposed development has a separation of 18-28 m from the terraces on the opposite side of Rochford Street. These terraces face Rochford Street and have balconies and bedrooms to their first floor. The degree of separation, the use of these spaces and their semi-public nature leads to the conclusion that the visual and acoustic impact of the proposal is acceptable.

27 The property most affected is 203 Rochford Street which adjoins the site. The two closest units are 2.01 and 2.02. The terraces of both units are within 12 m of the upstairs balcony off the main bedroom to 203 Rochford Street. The experts have agreed that the combined effect of the planter boxes and the obscure glazed screen will provide an acceptable level of acoustic and visual privacy to this terrace and prevent overlooking of its rear open space. I accept this conclusion.

28 The remainder of 203 Rochford Street which faces the development does not have windows and the proposal is a greater distance than 12 m. The impact is therefore acceptable. The front bedroom of 203 Rochford Street has windows facing Rochford Street. Views to and from this window are extremely oblique and again there is significant separation at this point. I therefore find that the amendments to the conditions are acceptable.

29 The owners of 203 Rochford Street also raised concerns about overlooking to and from their terrace to the level one courtyards of the development. There is no proposal to amend the approved development that relates to these courtyards, and while there is a degree of overlooking it is mitigated to some extent by the lattice screen and the limited use of the balcony which is located off a bedroom.

Balcony area

30 During the hearing the proposal to enlarge the northern balconies of units 302 to 307 was amended. The balconies are still slightly wider and longer than what was approved, now being approximately 1.1 m by 3.2 m compared to the approved 0.8 m x 2.4 m.

31 Mr Moody and Mr Greville disagreed on whether any increase in the size of the balconies was acceptable. Mr Moody considered that the size, their location off bedrooms together with the separation and height of adjoining properties resulted in no unacceptable impact. Mr Greville accepted that the balconies were well in excess of the 12 m separation distance from adjoining properties but considered there would be increased overlooking from the increased use of the larger balconies.

32 I consider that the proposal as amended is acceptable. The width of the balconies and their location off bedrooms mean that people cannot congregate in groups but can only sit or stand in a single line. While it will be possible to see people using these balconies, their use is unlikely to result in an adverse impact. These units also have balconies off their living areas which are more likely to be used by groups.

Roof terrace

33 In relation to the proposed roof terrace off units 3.07 and 3.02, DCP 1997 does not have specific controls which relate to roof terraces. Mr Greville did not support the change of the roof terrace areas but agreed with Mr Moody that the proposed planter boxes, the location of the terraces off the bedrooms together with the height and separation of the terraces would ensure that there was no unreasonable overlooking of adjoining properties.

34 The residents were concerned that the size of the terraces and their distant views would result in them being used by large numbers of people on a regular basis. They were concerned that the terraces had been constructed without consent and this should not be a reason why their use should be approved. In relation to this issue, it is open to an applicant to seek to amend a consent. The responsibility of the Court is to assess the proposal on its merits within the context of the planning controls and the likely impacts that will result. The fact that the terraces have been constructed is not a relevant factor in the consideration of the merits of the proposal.

35 Mr Pickles, for the council, referred to the judgment of Senior Commissioner Roseth in Superstudio v Waverley Council [2004] NSWLEC 91 which enunciated the principle that

acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it. For example, the privacy impact of a second storey side window in an area of two storey buildings should be accorded a higher threshold of acceptability than the impact of a second storey balcony in a house that already has three other balconies. Applying this principle in the present case, I note that the approved proposal also has three outdoor areas. The surrounding houses do not have roof terraces so a roof terrace would be a new element in the area. This does not mean that it is inappropriate, only that its impact should be assessed with a heightened sensitivity. A roof terrace would be acceptable only if its impact were minor or negligible.

36 In this case the two units have terraces off living areas at level three as well as the balconies off the bedrooms off level four. The proposed roof terraces will provide an additional outdoor area that is not necessary for the amenity of these units. The size of the roof terrace, particularly the one off unit 3.07, is large and affords excellent views. It is therefore reasonable to conclude that the terraces could be used by a large number of people, at least on an occasional basis.

37 The noise impacts of the use of the terraces have not been assessed. While it is unlikely to be a problem for the terraces in Rochford Street, the impact on other units in the development itself would need to be considered as there are a large number of units with open spaces in close proximity to each other.

38 The proposal as a whole has a large number of balconies and terraces which overlook not only the adjoining residential areas but also the other units in the development. While the majority of the terraces exceeds the desired separation distance of 12 m, there are a considerable number in this elevation. It is understandable that the adjoining residents have the perception of being overlooked. The proposed roof terraces, even with the planter boxes, will add to this perception. I therefore do not consider that the impact of these terraces can be considered as minor or negligible as these units already have more than adequate open space areas. I therefore do not agree that they should form part of the approval.

Slab extension

39 A further change that needs to be addressed is the deletion of the slab which extended over the terraces of level three. This does not form part of the s 96 application. The development has not been constructed in accordance with the approved drawings and the change needs to be ratified. The deletion of this element is of concern as it removes shading from the western sun to the living areas on level three. It also means that the outdoor areas can be overlooked by the level four bedrooms of adjoining apartments. While reinstatement of the approved slab is not necessary, some form of shading device should be provided.

Directions

40 I direct that amended plans and agreed conditions, which incorporate the changes outlined in this Judgment be filed and served within 7days. Upon receipt I intend to issue the following Orders in Chambers

1. The appeal is upheld.

2. The s96 application to modify development consent U01/01276 for a mixed use development at 612-622 King Street, Erskineville, is approved and the consent is amended as set out in Annexure “A”.

3. The plans filed on 28 September 2005 are to be retained on the file and the exhibits may be returned.

4. No order as to costs.

Annelise Tuor
Commissioner of the Court
rjs