Baker Kavanagh v Sydney City Council

[2005] NSWLEC 63

Land and Environment Court

of New South Wales

CITATION:

Baker Kavanagh v Sydney City Council [2005] NSWLEC 63

PARTIES:

Baker Kavanagh Architects
Applicant

Sydney City Council
Respondent

FILE NUMBER(S):

10845 of 2004

CORAM:

Roseth SC

KEY ISSUES:

Contaminated Land - Development Application - Development Control Plan :- Noise impact

DATES OF HEARING:

20/01/2005 and 21/01/2005

 
DATE OF JUDGMENT: 

02/22/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr G Green, solicitor of Pike Pike & Fenwick

Respondent:
Mr C Leggatt, barrister instructed by
Mr C Stewart, solicitor of Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

22 February 2205

10845 of 2004 Baker Kavanagh Architects v Council of the City of Sydney

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Sydney City Council (the council) of a development application to demolish the existing service station and erect a five-storey residential flat building over basement parking on lot 1A DP 40316h7, known as 241-245 Sydney Park Road, Erskineville.

The site

2 The site is triangular in shape, with an area of 1,200m2. It is on the northern side of Sydney Park Road, close to its intersection with King Street. It now accommodates a service station.

3 Adjoining to the north is the railway line passing through Erskineville. Adjoining to the east is an electricity substation containing a building and transformers. Beyond this is a residential complex including a high-rise building called the Zenix. Adjoining to the south is Sydney Park Road. There is a bus stop on Sydney Park Road near the western end of the site.

4 The site is in the flight path to Sydney Airport. It is between the 20 and 25 ANEC/ANEF contours on the ANEC noise contour map (1994).

The proposal and its history

5 The applicant proposes to demolish the existing service station structures on the site and erect a five-storey residential flat building containing 26 dwellings over basement parking for 21 cars.

6 The applicant submitted the development application in January 2004. Following discussions, the applicant submitted amended drawings. The council notified the application in February 2004 and received three submissions. In July 2004 the council’s Planning, Development and Transport Committee considered a planning report that recommended refusal. The Committee accepted the recommendation and refused the application. The applicant filed the appeal in July 2004.

Relevant planning instruments and policies

7 The two relevant local planning documents are the South Sydney Local Environmental Plan 1998 (LEP 98) and the South Sydney Development Control Plan 1997 (the DCP). State Environmental Planning Policy 65 – Design of Residential Flat Buildings (SEPP 65) provides principles for the design of apartment buildings. The SEPP incorporates the Residential Flat Design Code for detailed design guidelines.

The issues

8 The council submitted a Statement of Issues containing seven issues. During the hearing, however, the issues emerged somewhat differently, ie:

· Is the site contaminated?

· If the site is not contaminated (or can be treated to be free of contamination), is it suitable for housing?

· Should the building contain commercial as well as residential uses?

· Are the bulk of the proposal and its relationship to the site appropriate? Is the amenity acceptable? Is the FSR bonus justified?

9 The parties agreed that the question of contamination might be resolved by the applicant undertaking further investigations. Since the investigations are costly, they also agreed that the Court should defer this issue, to be re-visited if the other issues are resolved.

Is the site suitable for housing?

10 Mr Barry Murray, the acoustical consultant appointed by the Court, said that all windows of all dwellings would have to be kept closed to achieve acceptable noise levels inside. Depending on the loudness of the air conditioning system, it may be necessary to install double-glazing on some of the windows. The major noise generator was Sydney Park Road, followed by the train line. The substation was the least noisy. Responding to a question from the Court, Mr Murray said that the noise problem could not be overcome by a different design (such as a larger setback from the boundaries). The noise impact is a product of the site’s location and would have to be dealt with by closed windows, whatever design is proposed. In Mr Murray’s opinion, apartments that must have closed windows to reduce outside noise are not unusual. They occur in most buildings built along busy roads, such as Parramatta Road.

11 The council’s planning expert, Mr Stan Fitzroy-Mendis did not suggest that there should be no residential use on the site. There was no other expert evidence to this effect. The suggestion that the site should not be put to residential use came from Mr Craig Leggatt, who raised the matter in submissions. Given the lack of expert evidence, I cannot embrace the submission. If I did, it would fly in the face of the many residential buildings on sites along noisy roads that exist in Sydney. A dwelling that is mechanically ventilated or air-conditioned is clearly less desirable than one with natural ventilation. However, some people appear to accept this drawback, balancing it against other attributes such as location.

Should there be mixed uses?

12 While Mr Fitzroy-Mendis did not suggest that there should be no residential use on the site, he said that there should be a mix of uses. This would be more consistent with the objectives of Zone No 10, the Mixed Uses Zone. I note that there is nothing in the LEP, or the zone objectives, that requires a building in the Mixed Uses Zone to contain more than one use. While the zone allows several uses that are usually segregated in planning instruments, the mixture of uses is not mandatory.

13 Mr Fitzroy-Mendis supported his opinion with the fact that the noisy environment of the site made it more suitable for offices than residential. This is not an argument for mixed uses but for the zoning the site commercial, a course of action that the council had not taken. If the proposal contained both commercial and residential space, this would only reduce the number of dwellings, not eliminate residential use. If a small number of dwellings with closed windows is acceptable, a larger number must also be acceptable.

14 While I agree with Mr Fitzroy-Mendis that a building containing offices and apartments might be a better solution for the site than an apartment building, I see nothing in the council’s controls that would enable the council or the Court to force mixed uses on the applicant.

Bulk in relationship to the site

15 Mr Fitzroy-Mendis had several criticisms of the proposal’s design, most of them in relation to the shape and location of the site. His main point was that the site was constrained. It had an awkward triangular shape and it was surrounded by uses that had adverse impact on residential amenity.

16 Mr Fitzroy-Mendis’ major criticisms of the proposal’s design were:

· The proposal was too high;

· The setbacks from the boundaries were inadequate;

· The communal landscaped area was too small and inconveniently located;

· The proposal’s Floor Space Ratio (FSR) was excessive, and should not be granted a bonus of 0.25:1.

17 I turn to the issue of height. The DCP establishes a maximum height of 12m for the site. Section 2.3 of the DCP states that “in special circumstances the council may support a part-storey above the prescribed height limit, provided the part-storey is wholly within the 36o height plane as defined.” The proposal makes use of this provision, and to a minor extent exceeds the 36o height plane.

18 I do not know what the authors of the DCP had in mind when they referred to special circumstances. The only special circumstances that apply to this site are that it is an awkward shape and has four different sources of noise affecting it, namely the road, the railway, the substation and the flight path. None of these would justify an attic storey.

19 Mr Fitzroy-Mendis said that he objected to the height because the building would look dominant from several vantage points. The applicant’s planning expert, Mr Andrew Darroch appears to have assumed in his statement of evidence that every site and every design qualifies for special circumstances. (While he did not explicitly state this, his defence of the proposal’s height makes no mention of what special circumstances apply to this site.)

20 Notwithstanding my comments in paragraph 18, I do not think that the height of the proposal presents a major problem. This is because there are numerous recently approved and constructed buildings of similar or greater height on Sydney Park Road, including the nearby Zenix tower. In the context of these buildings it matters little whether or not the proposal includes an attic floor.

21 I turn to the proposal’s setbacks. The proposal is built at an angle to the road, so that one of its corners is on the road alignment. Mr Darroch and Mr Fitzroy-Mendes disagreed on whether the DCP requires a 6m or a 4m setback from Sydney Park Road. They also disagreed on whether there was an established building line on Sydney Park Road. Because of the obtuse angle at which the proposed building faces the road, the usual setback requirements are difficult to apply. I have therefore looked at the purpose for which the DCP requires a setback from the street. I posed the question whether the proposal meets the purpose.

22 The DCP sets out the following reasons for a setback from the street:

· to continue with the existing streetscape;

· to provide privacy from the street;

· to provide a buffer to street activity;

· to provide an area for daylight and sunlight;

· to provide landscaped visual setting for the building; and

· to provide a noise attenuation zone.

23 While the adjoining electricity substation does not have a discernible setback, beyond that site there is something like an established setback on Sydney Park Road of about 7m. The proposal breaks the setback, though to some extent this is unavoidable because the other sites are rectangular while the subject site is triangular. The setback does not provide privacy from the street: the kitchen window of Unit 1 is less than 1m from the road, the dining room window is 2.5m from the road and the bedroom window is 5m from the road. Consequently the setback does not provide a buffer to street activity. The proposal receives adequate daylight and an increased setback would not improve this.

24 The setback is too small to provide a landscaped visual setting for the building. I accept that the landscape designer has done his/her best with the area available for planting; the problem is that the building’s designer has left an inadequate front setback for landscaping. Mr Murray’s evidence was that an increased setback would not decrease the noise, so the last-mentioned reason is not relevant.

25 All in all, the setback fails to meet the purposes for which the setback was established in the DCP. There is no opportunity in the front setback to provide landscaping that might balance the hard surfaces of the building. I conclude that the proposal breaches the numerical setback requirement of the DCP and fails to achieve the purpose for which the requirement was imposed.

26 The site setback to the northern boundary is 1.5m. The DCP requires a setback of 4m. The boundary is adjacent to the railway line, so there is no adjacent development that might be adversely impacted. However, the placement of balconies within 1.5m of a railway line will provide poor amenity for the dwellings facing in that direction. I note that the basement garage has no setback to the northern boundary. The only landscaping proposed is a planter box within the 1.5m-setback. I do not see any justification for not observing the DCP’s modest requirement for a 4m setback from that boundary, thus allowing some decent landscaping between the building and the railway line.

27 I turn to communal open space. The proposal allocates about 150m2 in the northern corner of the triangular site to communal open space. The DCP has requirements only for communal and private open space considered together. When the private courtyards are included in the open space, the proposal appears to meet the numerical requirement of the DCP. (I note that the private courtyards are not really courtyards as they are not open to the sky, so they are more correctly referred to as balconies. However, since the council did not raise this issue, I have not taken it into account.)

28 The requirements of the Residential Flat Design Code are more onerous. That Code requires 25-30% of the site area to be set aside for communal open space. The proposal falls far short of this. To meet the guidelines of the Residential Flat Design Code, the proposal should set aside at least 300m2 for communal open space, ie twice as much as it does.

29 In Mr Fitzroy-Mendis’ opinion, the main shortcoming of the communal open space is not that it is too small, but that it is inconveniently located. Mr Darroch’s response was that the “open spaces are well-designed and have good amenity”. In my opinion, setting aside one corner of the triangular site for communal open space is not consistent with locating that open space conveniently for the residents. The only justification for communal open space in the obtuse-angled corner is that the corner is too narrow to accept any building, so it is of no value for maximising development potential. The communal open space is in a leftover space, not in a designed space. It is unconnected to any of the dwellings. It may meet the numerical standard of the DCP (though not of the Residential Flat Design Code), but it does not meet its spirit.

30 I turn to Floor Space Ratio. The proposal’s FSR is just under 1.75:1. Part E of the DCP, Control 2.2 establishes the maximum FSR for the site as 1.5:1. A bonus FSR of up to 0.25:1 may be applicable to sites requiring the provision of

· dedication of land for pedestrians or cyclists;

· right of public access;

· streetscape, bicycle and pedestrian enhancement works;

· public art;

· social development projects;

· stormwater amplification;

· public transport projects;

· enhancements to existing parks;

· aerial bundling or undergrounding of cables;

· any other works or improvements at the discretion of the council.

31 There was no evidence that the subject site requires the provision of any of the above. To justify the bonus FSR, the applicant offered to contribute to the enhancement of Sydney Park. Alternatively it offered the western corner of the site for public access. Mr Fitzroy-Mendis said that the council did not consider these offers acceptable because it did not assess the site as environmentally capable of supporting the additional floor space.

32 In my opinion the shape and location of this site are such strong constraints on its development potential that it would be hard to design a satisfactory building on it at the basic FSR of 1.5:1, let alone one with additional bonus floor space. The applicant’s suggestion that the proposal should be awarded bonus FSR is entirely unreasonable.

Conclusions

33 The subject site is heavily constrained by its small size, its triangular shape, its location within the flight path and its proximity to a busy road, a railway line and an electricity substation. It is not a site particularly suited for residential development, but since the zoning permits residential development, the constraints do not justify the refusal of a proposal merely on the basis that it is for housing. However, the constraints suggest that an appropriate development should be comfortably within (if not below) the controls of the DCP. To make living conditions on this site bearable, a residential building would have to be sufficiently set back from the boundaries to allow it to be surrounded by a dense landscaped screen. To compensate for the many adverse impacts, it should provide communal space accessible to, and visible from most of the dwellings.

34 The present proposal is far short of an acceptable design. The appeal is therefore dismissed.

Orders

1. The appeal is dismissed.

2. Development application to demolish the existing service station and erect a five-storey residential flat building over basement parking on lot 1A DP 40316h7, known as 241-245 Sydney Park Road, Erskineville is determined by refusal.

3. The exhibits are returned.

__________________
Dr John Roseth
Senior Commissioner