Bassett and Jones Architects v Waverley Council

[2006] NSWLEC 69

Land and Environment Court

of New South Wales

CITATION:	Bassett & Jones Architects v Waverley Council [2006] NSWLEC 69
PARTIES:	APPLICANT: Bassett & Jones Architects RESPONDENT: Waverley Council
FILE NUMBER(S):	11126 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Development Consent :- Non-compliance with floor space ratio and height and Amenity impacts
LEGISLATION CITED:	Waverley Local Environmental Plan 1996, (WLEP) Environmental Planning and Assessment Act 1979, s79C and 96(6)
CASES CITED:	North Sydney Council v Michael Standley & Associates (1987) 97 LGERA 443
DATES OF HEARING:	13/12/2005; 17/01/2006; 18/01/2006
DATE OF JUDGMENT:	02/21/2006
LEGAL REPRESENTATIVES:	APPLICANT: Ms M-L Taylor, solicitor SOLICITORS: Norman Waterhouse RESPONDENT: Mr S Brockwell, barrister, instructed by Mr S Patterson, solicitor SOLICITORS: Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

21 February 2006

11126 of 2004 (s 96) - Bassett & Jones Architects v Waverley Council

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Waverley Council (the council) of a modification application relating to a Court-approved development to partially demolish an existing pair of semi-detached shops and to erect a mixed commercial and residential development at Lot 27, DP 192094, being No 129 Macpherson Street, Bronte. The application had been lodged under s 96AA of the Act.

2 I visited the land in company with the parties on the morning of the proceedings and on that occasion I heard from concerned local residents.

3 I have concluded that the application when considered under s 79C of the Environmental Planning and Assessment Act 1979, should fail for reason of the adverse amenity impacts of the increased height and inadequate side setbacks.

The land

4 The land is situated on the southern side of Macpherson Street and is rectangular in plan, with an area of 558m2. The land has a frontage to Macpherson Street of 12.19m side boundaries of 45.72m and to Chesterfield Lane at the rear of 12.55m. Erected on the land is a pair of two-storey semi-detached shops with residences above.

5 Mixed-use developments with ground floor commercial tenancies and residential uses above predominate. Other development nearby includes residential, generally comprising one to two-storey detached dwelling houses. At No 127 Macpherson Street to the west of the land is a two-storey building comprising shops and ‘Holiday Flats’. At Nos 133-135 Macpherson Street there is a three-storey brick building with medical suites on the ground floor and apartments above. This building is said to comply with the 9m-height limit under the environmental planning instrument.

Relevant planning controls

Waverley Local Environmental Plan 1996, (WLEP)

6 Under the provisions of the WLEP the land is zoned and the proposal is permissible with consent.

7 Other planning controls include:

· State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development;

· Development Control Plan No. 9 - Community Crime Prevention;

· Development Control Plan No. 14 - Bicycle and Car Parking;

· Development Control Plan No. 26 - Access for People with Disabilities;

· Development Control Plan No. 29 - Advertising and Notification of Development Applications.

The proposal and its history

8 The proposal includes the following changes from the proposal that was granted consent by the Court:

· the construction of an additional storey to the approved front building which alters the front building from three-storeys to four-storeys;

· the provision of a zero side setback for a part of the external side walls at all three levels; and

· construction of a blade wall and columns at the sides of the ground floor level shop.

Original development application history

9 The original Court-approved development application involved:

The construction of three (3) building forms within the lot:

· The first building form fronting Macpherson Street contains one commercial tenancy and 2 x three bedroom units over three storeys. This building has a height of four storeys.

· The middle building form is three storeys in height and contains 2 x three bedroom apartments.

· The rear building form also contains 2 x one-bedroom apartments within 2 storeys.

· The basement level contains 8 parking bays, bicycle parking and garbage and storage areas.

10 Waverley Council refused this application for reasons relating to unreasonable amenity impacts on surrounding properties, non-compliance with floor space ratio and height provisions.

11 The applicant appealed against this refusal and an amended proposal with the upper (fourth) level to the front building deleted and side boundary setbacks provided, was approved, by the Court, subject to conditions, on 24 February 2005.

12 The modifications now sought would render the proposal similar to the proposal originally sought by the applicant and prior to the Court hearing.

13 The plans approved by the Court, the subject of the original consent (original plans) are: 0307 - DA00E, DA01E, DA02E, DA03E, DA04E, DA05E, DA06E by Bassett & Jones dated November 2004 in Exhibit C.

Modification application history:

14 On 18 May 2005, a modification application was lodged with the council under s 96AA of the Environmental Planning and Assessment Act 1979.

15 Plans submitted with the modification application under s 96 of the Act as filed with Court (new plans) are: 0307 – DA00G, DA03G, DA04G, DA05G, DA06G by Bassett & Jones dated April 2005 in Exhibit D. The council assessed the proposal:

Floor Space ratio/Floor space: Clause 27 of WLEP

Original plans	New plans	Difference	% Increase	Compliance
1:1	1.20:1	0.20:1	20%	No
557m2	669m2	112.5m2	20%	N/A

Original plans	New plans	Difference	% Increase	Compliance
8.31-8.71m	10.61-10.96m	2.25-2.3m	26-28%	No

Original plans	New plans	Difference	% Increase	Compliance
3 storeys	4 storeys	1 storey	33%	No

16 In the modification application no additional floor space was proposed on the new ground floor and the only change at this level would be addition of support walls and columns. On the first floor there would be an increase of around 8.7m2 of additional floor space; on the second floor, 12.6m2 of additional floor space and on the third floor 91.2m2 of additional floor space. On these figures the floor space is proposed to increase by 112.5m2. However, the town planning experts agreed on a figure of 118m2 and a floor space ratio of 1.2:1, [Note: Exhibit 2, p1].

17 The proposed building No 1would be setback from side boundary at the ground floor a similar distance as the original ground floor except for new support walls and columns on the boundary, [Note: Exhibit D, Drawing No DA03G]. On the first floor the modified proposal would be setback on the western side a nil distance for a length of 37% of the side wall, (4.3m length); and a 1m-side setback for 63% of the side wall (7.3m length), [Note: Exhibit D, Drawing No DA04G]. On the eastern side the modified proposal had a nil setback for 56% of the side wall (6.5m length); and a 1m-side setback for 44% of the side wall (5.2m length).

18 For comparison purposes the original plans consented to by the Court had a 1m-setback to side boundary on both sides (east & west) for 100% (11.68m length) of the length of the sidewall.

19 On the second floor the modified plans showed a nil-side setback (east & west) for 56% of the side wall (6.3m length) and a 1m-side setback (east & west) for 44% of the side wall (5.0m length).

20 The originally Court-approved second floor plans had 1m-side setback on both sides (east & west) for the full length of the side wall (11.3m length).

21 In the modified plans an entirely new third floor is proposed which is to be partly built to the side boundaries. When viewed from Macpherson Street the existing shop and residence would be retained and for a distance of around 5m from the front alignment would be setback 1m from both side boundaries. Thus from many viewpoints in the street the existing building would appear as it does today. The only difference being that there would be a new structure surrounding it setback around 5m from the street.

Notification

22 The modification application was notified in accordance with council's notification policy and the council received ten (10) objections. Objectors raised concerns in relation to:

· the current changes were deleted from the previous approved development application. Now the applicant seeks to return to the previous development;

· loss of privacy from 4th floor balconies;

· excessive height and floor space;

· non-compliance with FSR and height controls;

· precedent set in remainder of street if height allowed;

· excessive ratio of residential use to commercial; and

· impact of zero side boundary setback.

23 As at 12 September 2005 when the modification application was appealed, The council had not yet determined this application it, so the appeal was on the basis of deemed refusal.

The hearing

24 The appeal was filed on 24 August 2005.

25 At the hearing the court heard evidence on behalf of the respondent council from:

· Ms V Milson, representing the Bronte Beach Precinct Committee;

· Ms E Rink, address not disclosed;

· Mrs J Blair, resident of No 8/125 Macpherson Street, Bronte;

· Mr S Venning, resident of No 75 St Thomas Street, Bronte;

· Mr R S Wheeler, resident of No 127 Macpherson Street, Bronte.

· Mr W R Gawne, consultant town planner for Waverley Council; and

· Mr M Reid, Manager Development Assessment of Waverley Council;

26 On behalf of the applicant evidence was given by:

· Mr A D Durroch, consultant town planner; and

· Mr T Jones, architect.

27 Mr M Reid, Manager Development Assessment, prepared the statement of basic facts dated 12 September 2005.

The issues

28 On 20 September 2005 the council filed a statement of issues.

Not Substantially the Same Development

Particulars

Floor Space Ratio

Particulars

Height

Particulars

(a) Clause 28 of WLEP 1996 provides for a maximum height of 9.0m.
(b) The maximum height of the proposed amended development is 11m.

Amenity Impact

Public Interest

6. The application should not be approved, as it is not in the public interest.
7. The application should not be approved due to the matters raised by objectors.

29 The Court considered Issue 1 on 27 October 2005 and Commissioner Moore held that the proposed modification was substantially the same as the application for which consent was originally granted by the Court.

30 The respondent council maintains (although the applicant does not agree) that the principal-contested issues of the proposed modification would be amenity impacts including:

1. Impact on streetscape in that the height of the proposed front building will be out of keeping with the established streetscape in the area.

2. Unreasonable acoustic impact from the proposed elevated courtyard and open space.

3. Privacy impacts caused by the proposed elevated courtyard and open space.

· Bulk flowing from the breach of the allowable FSR and nil side setbacks and the resulting overbearing impact;

· Height as it impacts on the streetscape;

· Overshadowing and loss of light;

· Internal amenity and SEPP65.

The evidence and findings

Bulk flowing from FSR breach

31 The proposed modification application would have a floor space ratio of 1.2:1 and under cl 27 of the WLEP the allowable FSR is 1:1 for mixed residential and business uses with these primary uses in approximately equal proportions. There is no need of a State Environmental Planning Policy No 1 objection to the FSR standard as this is an application under s 96 of the Act, [Note: North Sydney Council v Michael Standley & Associates (1987) 97 LGERA 443]. So the Court has power to approve the application despite the breach of FSR if the proposal meets the aims and objectives of the WLEP and the Act. However, the breach is for an increase in gross floor area of around 118m2 and would add around 61m2 to create a fourth floor and adds around 57m2 to the sides of the modified proposal on the first and second floors.

32 The increase in bulk and the nil side setbacks result in the proposed modification application having an overbearing impact on the adjoining residents particularly on those occupying No 127 Macpherson Street, the ‘Holiday Flats’. On the ground floor the new support walls would reduce the openness of the entrance passage to No 127 Macpherson Street. At the upper levels the modified proposal would increase overshadowing and reduce light to the rooms of that property. This increase in the bulk of the proposal has adverse flow-on effects, which are addressed below.

Height as it impacts on streetscape

33 The height limit under the WLEP in Macpherson Street is 9m and the proposal is for a development around 10.9m to 11m high. As this is a s 96-modification application there is no need for an SEPP1 objection to the height standard of cl 28 of the WLEP.

34 The height would have a visual impact in the streetscape, in that the top floor would be clearly seen by observers from a number of locations in Macpherson Street over the top of the parapet and to the side of the ornamental urns that grace the top of the existing façade. This is confirmed in the sections prepared by Mr Jones the architect in Exhibit 7. An observer standing on the footpath opposite the premises in front of No 18 Macpherson Street, would be able to see about 1.1m of the top floor of the proposal as modified. I am satisfied this would cause the subject building as modified to appear higher and different to other buildings on the southern side of Macpherson Street. In particular it would appear higher than the building at Nos 133-135 Macpherson Street, which on the site inspection was determined to comply with the 9m-height standard.

35 Mr Gawne for the council, was of the opinion that the proposal would be highly visible up and down the street and from the buildings opposite and Mr Darroch, for the applicant, considered that with the top floor setback, it would be mostly masked from viewpoints in the street. I prefer the evidence of Mr Gawne on this point and the section in Exhibit 7 confirms the extent to which the top floor would be visible. I consider this additional height of building to be a deficiency of the design and I am satisfied that for reason of this deficiency, in combination with other adverse impacts, the proposal should be refused consent.

Overshadowing and loss of light

36 Mr Wheeler objected strongly to the proposed fourth floor of the modified development, which he pointed out that the proposed modification would exceed the height limit of 9m by around 2m. He stated that the proposed fourth floor would overshadow his building and the solar panel on the roof of Flat 3, already shaded by the approved middle building, during the winter months. This latter claim was assessed by the experts and did not loom large in submissions.

37 The shadow diagrams in Exhibit K show the extent of the additional overshadowing on the ‘Holiday Flats’ at No 127 Macpherson Street, Bronte, as a result of the proposed modification and can be compared with the extent of overshadowing likely to occur as a result of the application approved by the Court. At 9.30am in midwinter, there would be a greater extent of overshadowing on the eastern wall of No 127 Macpherson Street with the modification application when compared with the original consent. The windows to the kitchen and dining alcove on the eastern rear top floor unit would not be in sunlight with the modification application and with the original consent the windows to these rooms would maintain sunlight at least over part of the window area at 9.30am in midwinter. At 10.30am in midwinter the kitchen window would be in shade and the dining alcove would be mostly in shade at that time with the modification application. When compared with the original approval those windows at the same time would be sunlit. At 11.00am most of the eastern wall of No 127 Macpherson Street would be sunlit in either case, however, this sunlight is at such an oblique angle to the windows in the wall it would be of little benefit at that time.

38 Mr Wheeler, who spoke on behalf of his 84-year old mother, Mrs A Wheeler, the owner of the property at No 127 Macpherson Street, and expressed concern that the ‘Holiday Flats’ and especially the top floor flat No 1 might not receive a reasonable level of light and ventilation if the modification application were erected. He stressed that, as his mother’s building was setback 1.3m across a common light well, he would expect that, when the adjoining property were developed, it too would be setback a similar distance, to ensure an equitable distribution of natural light and ventilation, across the common boundary, [Note: Exhibit 4, Tab 6, letter dated 9 June 2005].

39 The Bronte Commercial Centres Policy at cl 5.1.2, under the heading of setbacks, suggests that side setbacks of 1m are only permitted where used to provide light and ventilation to non-habitable rooms and/or secondary sources of light and ventilation to habitable rooms. To provide amenity, flexibility and variety, of design options, applicants are urged under the Policy; to either have a zero side setback or a 3m-side setback. The plan that relates to the subject land is shown at cl 5.1.7 St Thomas Street Centre and between Nos 127 and 125 Macpherson Street a 3m minimum setback is required. This 3m setback seems to be in addition to the setback referred to in cl 5.1.2. The proposed modification would provide a nil setback to No 127 Macpherson Street at all levels 5.0m from the street alignment. The Policy on one reading of it would require either a 1m or 3m setback depending on whether secondary or primary sources of light and ventilation are required. The original application approved by the Court was setback 1m, the same distance as the existing building and to my mind this seems a reasonable compromise. The proposal would breach this side setback and for this reason among others, I refuse the application.

40 The presence of a new side wall on the common boundary between Nos 127 and 129 Macpherson Street and an increase in height of the proposal around 2m would undoubtedly reduce the amount of daylight received in the eastern side windows of No 127 Macpherson Street. The difference in the extent of sky visible from the first floor side window of Nos 127 Macpherson Street can be gauged by positioning the side window of that property on the Macpherson Street elevation and connecting by a line from the sill of that window to the top of the approved proposal and another line connecting with the top of the modified proposal, [Note: Exhibit D DA05G]. This exercise suggests that around 20-degrees of sky would be occluded at the sill by the additional bulk of the proposed modification. This is significant as from that sill only around 32-degrees of sky would be visible over the top of the approved building. Thus the proposal would reduce the extent of sky visible over the top of the approved development and reduce daylight. These calculations are based on the assumption that the sill level of that side window of No 129-131 Macpherson Street is around 71.56m AHD and at a similar level as the window further back on the same side. This is compared to the height of the top of the roof of approved development on the subject land at 75.26m AHD and the height of the modified roof level of 77.56m AHD, [Note: Exhibit 8].

41 The occupants of No 129-131 Macpherson Street will be required to accept a loss of daylight into the first floor side window as a result of the increased height of the approved development to reduce that light further would be unreasonable and as a result of the increased bulk of the proposed modification application. I would refuse the modification application for this reason as well.

Internal amenity and SEPP65

42 Mr Brockwell, for the council, submitted that the application should be refused for reason of non-compliance with the requirement under State Environmental Planning Policy No 65, (SEPP65) in that the ‘design intent’ of the modification application should not change between the development application originally approved and that as modified.

43 He submitted that the originally approved application provided private open space, (POS) adjacent to the living room of Units 1 and 2 on the second floor and the modification application would provide POS off the bedroom of Units 1 and 2 on the third floor with no POS off the second floor living room. Mr Jones, the architect, agreed that the needs of people occupying Units 1 and 2 in the original application might be different to the needs of people occupying Units 1 and 2 in the modification application. He agreed with the Court, that families with young children might prefer to live in Units 1 and 2 in the original proposal and young business couples might prefer the Units 1 and 2 in the modification application.

44 To this extent Mr Brockwell submitted that the design intent would change with the modification application.

45 However, Mr Jones suggested that the units in each case might be equally attractive to people with children or childless couples. It depends on the prospective occupants’ desires and predilections, he opined. Ms Taylor submitted that couples or individuals with children might still consider the modification application design as suitable and if they wished, could supervise young children playing in the POS on the third floor from the bedroom. She also pointed to the fact that the SEPP65 Design Review Panel was satisfied and raised no objection with the modification application. She submitted that the design verification statement as amended by Mr Jones and filed on 17 January 2006 in Exhibit N is sufficient evidence of compliance with SEPP65.

46 I am not persuaded by the submissions of Mr Brockwell, that I should refuse the application for reason of the alleged non-compliance with SEPP65 in respect of internal amenity. I am satisfied that the two options have benefits and each would have sufficient internal residential amenity to satisfy the design intent under SEPP65. Although Units 1 and 2 in the approved development when compared with the modification application design would have different access to POS, in a planning sense they are both dwelling designs that are considered acceptable under s 79C of the Environmental Planning and Assessment Act 1979. I would not refuse the modification application for this reason.

Other matters

47 During the proceedings the applicant indicated that it would be amenable to including screens on the southern side of the common access balcony to Units 1 and 2 and the bedroom decks of the upper portions of these units. I am satisfied that any privacy impacts caused by overlooking from these proposed elevated courtyards and open space could be conditioned and would not be a reason to refuse the application.

48 Also, I am satisfied that any acoustic impact from these proposed elevated courtyards and open space could be similarly dealt with. These would not be a reason to refuse the application.

49 However, for other above-stated reasons, the appeal is dismissed.

Orders
50 My orders are:
1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Modification application lodged on 18 May 2005 with Waverley Council under s 96AA of the Environmental Planning and Assessment Act 1979, in respect of development consent granted by the Court on 24 February 2005 [Matter No 11126 of 2004] is refused consent.

3. The exhibits are returned except for Exhibits C, D, E, K, O, 1 and 7.

S J Watts

Commissioner of the Court

sw