Ben Boyd Constructions Pty Ltd v Willoughby City Council
[2006] NSWLEC 794
•22/12/2006
Land and Environment Court
of New South Wales
CITATION: Ben Boyd Constructions Pty Ltd v Willoughby City Council [2006] NSWLEC 794 PARTIES: APPLICANT
Ben Boyd Constructions Pty LimitedRESPONDENT
INTERVENOR
Willoughby City Council
Hagino Pty LtdFILE NUMBER(S): 10053 of 2006 CORAM: Tuor C KEY ISSUES: Development Application :- demolish three existing houses and construct 12 townhouses with basement parking LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Willoughby Local Environmental Plan 1995
State Environmental Planning Policy No 1
State Environmental Planning Policy No 65CASES CITED: Melissa Grech v Auburn Council [2004] NSWLEC 40;
Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189 ;
Karavellas v Sutherland Shire Council [2004] NSWLEC 251DATES OF HEARING: 12/07/2006, 13/07/2006, 21/07/2006, 17/08/2006 and 01/09/2006
DATE OF JUDGMENT:
12/22/2006LEGAL REPRESENTATIVES: APPLICANT
Mr G. McKee, solicitor
of McKees Legal SolutionsRESPONDENT
INTERVENOR
Ms H. Irish, barrister
Instructed by Ms L. Segal
of Mallesons Stephen Jaques
Ms S. Hill, solicitor
of Susan Hill & Associates
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
22 December 2006
10063 of 2006 Ben Boyd Constructions Pty Ltd v Willoughby City Council
JUDGMENT
1 COMMISSIONER: This is an appeal against the refusal by Willoughby City Council (the council) of a development application (DA-2005/809) under the Environmental Planning and Assessment Act (EPA Act) to demolish the existing dwellings and construct twelve townhouses with underground parking at 57-61 Archer Street, Chatswood (the site).
2 For the reasons set out in this judgment, I have concluded that the appeal should be upheld and the application approved subject to conditions.
The site and its context
3 The site is located on the corner of Archer Street and Albert Avenue, Chatswood. It comprises three allotments being lots B and 1 DP 168608 (57 and 59 Archer Street) and lot 1 DP 518318 (61 Archer Street). Each allotment is developed with a detached house. The site has a frontage to both Albert Avenue and Archer Street of 45.72m and has a total area of 2090sqm.
4 The site is located immediately to the south of the Chatswood commercial area. The Chatswood Police Station and a commercial building are located on the opposite corners of Albert Avenue and Archer Street. Adjoining the site to the east is a single storey house on the corner of Albert Avenue and Bertram Street (34 Albert Avenue). Surrounding development to the east and south is generally one and two storey houses with some recent town house developments. Development to the west, on the opposite side of Archer Street, is a public car park and residential flat buildings.
The history of the proposal
5 The development application was lodged on 28 September 2005. It was notified and council received four submissions including an objection from Hagino Pty Ltd, the owner of 34 Albert Avenue, the intervenor in the appeal. The applicant lodged an appeal against council’s deemed refusal of the application on 25 January 2006. The applicant submitted amended plans on 8 March 2006. The report to Council on 24 April 2006 recommended a deferred commencement consent, however, the council refused the application by Notice of Determination dated 18 May 2006. The application was further amended in response to matters raised in the preliminary report of the Court Appointed Expert, Ms D Laidlaw. These amended plans are the subject of the appeal.
The Proposal
6 The proposal is for the demolition of the existing dwellings and the construction of 12 two storey townhouses (4 x 3 bedroom and 8 x 2 bedroom plus attic) with basement parking for 18 cars accessed off Albert Avenue.
Planning Framework
7 The site is zoned Residential 2(b) under Willoughby Local Environmental Plan 1995 (LEP 1995). A three metre wide strip along the Albert Avenue frontage is zoned Special Uses 5(d) Proposed Road Reservation. The proposed townhouses are within the definition of a residential flat building under LEP 1995 and are permissible with consent.
8 Clause 23 of LEP 1995 permits a floor space ratio (FSR) of 0.7:1 in the Residential 2(b) zone. The proposal has an FSR of 0.82:1. The floor space in excess of the standard results from the gross floor area of basement car parking in excess of council’s requirements. The applicant has submitted an objection under State Environmental Planning Policy No 1 (SEPP 1).
9 34 Albert Avenue is listed as a heritage item under LEP 1995. Clause 58 requires an assessment of the impact of a development in the vicinity of a heritage item on the significance of that item. Clause 62 provides heritage conservation incentives which exclude the gross floor area of the heritage item for the purpose of calculating FSR and the car parking for a building on land which contains a heritage item.
10 Development Control Plan No 4 – Chatswood Fringe Area (DCP 4) includes the block bounded by Archer, Albert, Bertram and Johnson Streets. During the hearing, DCP 4 and the other relevant development control plans were incorporated into the consolidated Willoughby Development Control Plan (WDCP), which came into force on 21 August 2006. The provisions in DCP 4 are the same as those incorporated into WDCP. For consistency and clarity with the evidence I will refer to provisions as stated in DCP 4 and in the other relevant development control plans.
11 The principle aims and objectives of DCP 4 of relevance to this appeal are set out in cl 5 and include:
i) Ensure any future development or redevelopment takes place in an orderly fashion.
….
iv) Preserve identified heritage items
….
iv) Maintain residential accommodation in this accessible location
12 Clause 6 states the means of achieving these objective as:
i) To ensure orderly development by the delineation of lots to be consolidated and to rationalise access.
……
v) To maintain the availability of residential accommodation by permitting median density townhouses.
13 Clause 8 of DCP 4 provides specific controls for development in the Residential 2(b) zone which relevantly include:
iv) Vehicular Access
No vehicular access shall be provided from Archer Street or Albert Avenue. Vehicular driveways shall be located so as to minimise any potential loss of on street parking facilities or loss of street trees.
vii) Site Consolidation……
Development shall be in accordance with the Site Consolidation Plan accompanying this Clause provided that Council may vary the consolidated parcel where it can be demonstrated that special circumstances exist.
14 The Site Consolidation Plan identifies the site and 34 Albert Avenue as a parcel to be consolidated.
15 Willoughby Development Control Plan No 2 – Transport Requirements for Development (DCP 2) is also relevant. Clause 1.10 of DCP 2 provides:
For office/commercial development, residential flat buildings and restaurants, special rates are applied where the proposed development is located within a railway precinct (approximately 500 metres from a railway station)…..Maps indicating the location of Railway Precincts are attached in Appendix A. Where any part of a street block falls within the 500m radius, the whole block is considered to be included in the Railway Precinct…..t
16 Clause 2.1 of DCP 2 specifies the parking rates to be provided. The proposal exceeds the rates specified for residential flat buildings within the Railway Precinct, providing 18 spaces where 15 are required.
17 Development Control Plan No 15 – Multi-unit Residential Developments in Residential 2(b), 2(c) and 2(d) zones (DCP 15) and Development Control Plan No 19 – Heritage and Conservation ( DCP 19) are also relevant.
18 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65) is also relevant. The parties did not raise issue with the proposal’s compliance with SEPP 65
The issues
19 The Statement of Issues before the Court contained 11 issues. A number of issues were resolved by the provision of further information or the imposition of conditions. The remaining key issues are:
i. Whether the site should be consolidated with 34 Albert Avenue.
ii. Whether the number of parking spaces provided is excessive.
iii. Whether the SEPP 1 objection to the non compliance with the FSR control (cl 23 of WLEP 1995) is well founded.
iv. Whether the setback and landscaping to the southern boundary is adequate.
The Evidence
20 The Court heard evidence from Ms D Laidlaw, the court appointed planner; Mr G Pindar, the court appointed traffic expert; Mr T Dundas, a valuer, jointly appointed by the applicant and the intervenor; and the following experts:
21 For the applicant:
· Mr G Goodyer, town planner
· Mr R Nettle, traffic consultant
· Mr K Manolev, architect
22 For the council:
· Mr Czeref, town planner
· Mr C Hallam, traffic consultant
23 For the intervenor
· Mr V Schubert, town planner
· Mr J Bruce, architect
24 Traffic Sergeant J Underwood provided evidence on site in relation to the proposed access and the implications for the operation of the Chatswood Police Station.
Planning evidence
Whether the site should be consolidated
25 The key issue between the parties was whether 34 Albert Avenue should form part of the development site. Mr Bruce prepared a scheme which consolidated the sites (Brigstock Scheme, Exhibit R2). The Brigstock scheme provides vehicular access to the development at the rear of the heritage cottage, 34 Albert Avenue, off Bertram Street. The cottage is to be extended to the west to provide sufficient accommodation for use as a single residence. The proposal provides 16 townhouse on the combined site with an FSR of 0.76:1, including the gross floor area of the heritage cottage.
26 A great deal of evidence provided by the experts compared the merits of the Brigstock scheme (and earlier versions) with the development application. As stated during the hearing, I considered this to be unnecessary. The purpose of the Brigstock scheme is to indicate that development of the amalgamated sites is feasible and its likely yield within the planning controls. It is not to prefer one scheme over the other or to provide an alternative application to the one before the Court.
27 The experts disagreed as to the likelihood that the consolidated site would be able to achieve a FSR of 0.7:1 plus the heritage incentive. The difference of opinion can be simply put as being that Ms Laidlaw, Mr Czeref, Mr Goodyer and Mr K Manolev considered the Brigstock scheme was not a “complying development” and would rely on interpretation and minor non compliance with the planning controls. While it may be found to be acceptable there was a degree of “risk” associated with the proposal and therefore uncertainty as to whether the maximum development potential could be achieved for the combined site.
28 The contrary opinion of Mr Schubert and Mr Bruce was that a complying development could be achieved and therefore the risk eliminated.
29 The experts held different opinions on whether orderly and economic use and development of the separate sites can be achieved if amalgamation is not feasible. Their respective opinions are summarised in the joint statement as:
Ms Laidlaw and Mr Goodyer agreed that the separate sites are capable of orderly and economic use but recognise that No. 34 would be subject to constraints that would not apply under the “consolidated option” (meaning, in Ms Laidlaw’s view at least that the “maximum” floorspace potential including the heritage floorspace, would most likely not be realised. Mr Manolev agrees to the extent that “both sites could be separately developed”.
Mr Bruce says that the two sites should not be contemplated for individual development and consolidation should be insisted upon.
Mr Czeref’s view is different again. He concludes that if developed separately, both parcels would be capable of orderly and economic use through redevelopment, but that both would result in a sub optimum development in terms of achievable total floorspace potential that would be possible if both sites were to be amalgamated. Also there are planning disbenefits to individual development.Mr Schubert seems to support in part Ms Laidlaw and Mr Goodyer’s view in that he agrees that the subject site is capable of individual development, and also that No. 34 is subject to constraints which mean it would not be able to be developed to its full floorspace potential. Mr Schubert differs with Ms Laidlaw in his view as to the appropriateness of this outcome, since he says this would represent an outcome not consistent with orderly and economic development of land nor with the zoning intentions (ie that this land be available for median density development)
30 In summary, the experts agreed that the consolidated site would achieve a better planning outcome in that it would enable vehicular access off Bertram Street and provide more development potential than separate development of the sites.
31 The experts all agreed that:
- amalgamation of the subject site with 34 Albert Avenue is physically feasible and that the only impediment to this occurring is that of agreement on price, and the sale (or agreement to sale) on that basis, by Hagino PL.
Traffic evidence
32 The traffic experts agreed that it would be preferable that vehicular access be off Bertram Street. However, they did not consider that access off Albert Avenue to be unacceptable. Mr Pindar and Mr Hallam considered the instillation of a concrete median strip in Albert Avenue (to limit movements to left in and left out) to be necessary for the safe operation of the vehicular access driveway, subject to the approval of the Traffic Committee. Mr Nettle did not consider the median to be essential but agreed that conflict would be reduced if a median were installed.
33 Traffic Sergeant Underwood raised concerns that a median may restrict the movements of police cars and prison vans and would prefer no median strip. She supported access off Bertram Street rather than Albert Avenue.
34 The traffic experts agreed that the median should be designed and constructed to the satisfaction of the Traffic Committee, including the Police Department. Mr Pindar and Mr Hallam stated that while the median strip was highly desirable, it was not fatal to the application if the Traffic Committee did not support the instillation of the median.
Valuation evidence
35 The parties agreed that the planning principles in Melissa Grech v Auburn Council [2004] NSWLEC 40, Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189 and Karavellas v Sutherland Shire Council [2004] NSWLEC 251 were relevant. The submissions of Ms Irish, on behalf of Council and Ms Hill, on behalf of the intervenor, were that Council had not considered these principles in its assessment of the application and that the application failed to demonstrate that attempts to amalgamate…had been unsuccessful and amalgamation of the [sites] is not feasible. The key issue being whether the applicant had made a reasonable offer for 34 Albert Avenue.
36 Extensive negotiations have occurred between the applicant and Hagino Pty Ltd regarding the sale of 34 Albert Avenue. It is not necessary to set out in detail these lengthy negotiations, however, the following points are relevant for the purposes of this appeal. The negotiations commenced prior to the development application being lodged. The applicant made an initial offer based on a valuation on 2 April 2005 of $1.3m with 12 months settlement. This offer was rejected by Hagino Pty Ltd, it made a counter offer of $1.5m. Council suggested that the parties obtain an independent valuation to try to resolve the matter. This course of action seems to have been entangled with a series of offers and counter offers. However, the applicant on a number of occasions sought agreement from Hagino Pty Ltd to jointly appoint a valuer to “form the basis of a mutually agreeable sale price for the site” (34 Albert Avenue). Although initially agreed to by Hagino Pty Ltd it did not proceed with this course of action, as I understand, on the basis it thought it would be bound to accept the valuation of the independent valuer.
37 The development application was lodged on 28 September 2005. Details of the negotiations were included in the Statement of Environmental Effects. Hagino Pty Ltd made a number of submissions in response to the development application, including a valuation and a scheme for an amalgamated site. Council arranged a meeting with the applicant and Hagino Pty Ltd to discuss the issues of incorporating 34 Albert Avenue into the development site.
38 The report to council of 24 April 2006 address the consolidation issue. It summarises the negotiations and states that:
The applicant’s efforts to purchase No. 34, or gain an easement for vehicular access over the rear of the property, are considered reasonable in terms of the negotiations to date and inability to reach agreement with the owner of No. 34. The provisions of DCP 4 are not statutory requirements and Council has the discretion to consider the application notwithstanding the failure to achieve the consolidation. Accordingly, it is accepted that the amalgamated site as preferred under DCP 4, cannot be attained, with the consequence that vehicular access directly to Albert Avenue is proposed. Council’s traffic engineers do not object to this, on the grounds that the traffic generated by the proposed 12 units will not detrimentally affect Albert Avenue, provided a median is imposed restricting the turning movements to left in and left out only.
The development of the “unconsolidated” site also needs to be considered from the viewpoint of its effects of leaving No 34 as an isolated site, with less development potential than would be achievable under the 2(b) zone and using the heritage item incentive provisions. The development potential of number 34 lies principally in the following two areas:
1. The use of its site area and floorspace as a heritage item for additional floorspace in the proposed development, as allowed under the heritage incentive provisions of clause 62(2) of WLEP 1995.
2. Being able to provide the preferred the vehicular access, as identified in DCP 4, to a street other than Archer Street or Albert Avenue, both of which experience greater traffic volumes than Bertram Street.
In relation to point 1, the current status of 34 Albert Avenue as a local heritage item makes the bonus floorspace provisions allowed under the LEP problematic, as whether No. 34 is included in the development site or not, additional floorspace close to the dwelling must be considered in terms of maintaining the necessary curtilage for the heritage item. In this regard, Council’s heritage architect has objected to the current proposal, as per the comments above this report. Floorspace for townhouse development at the rear of No. 34, located above an access driveway to a basement, is potentially equally problematic in terms of building height and bulk relative to the building on the listed heritage property. (There may also be impacts on the adjoining property to the south in Bertram Street that would need to be assessed).
In summary, it is accepted that the inability to acquire No. 34, or an access easement over part of it, and the status of No 34 as a heritage item, constitute the special circumstances, as allowed under DCP 4, to not force the site amalgamation requirement.In relation to point 2, Council’s traffic engineers have advised that the proposed vehicular access to Albert Avenue is acceptable, albeit less desirable.
39 The Appeal was held on 12 and 13 July 2006 with final submissions to be held on 21 July 2006. The parties were encouraged to hold further discussions on site consolidation during this adjournment, in light of Mr Dundas’ independent valuation of the property. This valuation can be can be summarised as:
- i. $1,000,000 for a stand alone single dwelling
ii. A maximum of $1,525,000 as consolidated development site if all risk is removed (ie the property is purchased as an option).
iii. $1,250,000 as consolidated development site if risk is spread evenly between the purchaser and the seller.
40 On 21 July 2006 the parties advised the Court that they had reached in principle agreement on access over 34 Albert Avenue and requested a further adjournment to allow this to be progressed. Directions were issued and the parties were to advise by eCourt on 4 August 2006 whether the driveway option was to be progressed. During this period agreement was reached between the applicant and Hagino Pty Ltd that the rear portion of 34 Albert Avenue would be subdivided and sold for $550,000. The terms of this agreement were to be resolved.
41 A scheme which indicated the proposed development of the allotments was submitted to council for comment (the subdivision scheme). This scheme provided access to the site off Bertram Street and a townhouse on the new allotment at the rear of 34 Albert Avenue (townhouse 1). An additional townhouse (townhouse 13) was proposed on the site in the previous driveway location. The heritage cottage was retained on a separate allotment. Council advised that:
1. the access from Bertram Street was a positive outcome
2. the provision of townhouse 13 was supported in principle
42 Council raised concerns about other aspects of the subdivision scheme, particularly the lack of landscaping between the heritage cottage and townhouse 1, the car spaces adjoining the heritage cottage and the amount of private open space.
43 At the parties request the matter was relisted for a mention on 17 August 2006, at which time Mr Mckee, for the Applicant advised the Court, that despite reaching agreement with Hagino Pty Ltd on the sale of the rear portion of 34 Albert Avenue, the applicant would not proceed with the sale due to unresolved terms of the agreement, the time that a subdivision application would take and the holding costs. The matter was set down for final submissions on 1 September 2006.
Findings
44 In Melissa Grech, Brown C established the following three principles relating to the isolation of land through redevelopment:
Firstly, where a property will be isolated by a proposed development and that property cannot satisfy the minimum lot requirements then negotiations between the owners of the properties should commence at an early stage and prior to the lodgement of the development application.
Thirdly, the level of negotiation and any offers made for the isolated site are matters that can be given weight in the consideration of the development application. The amount of weight will depend on the level of negotiation, whether any offers are deemed reasonable or unreasonable, any relevant planning requirements and the provisions of s 79C of the Environmental Planning and Assessment Act 1979.Secondly, and where no satisfactory result is achieved from the negotiations, the development application should include details of the negotiations between the owners of the properties. These details should include offers to the owner of the isolated property. A reasonable offer, for the purposes of determining the development application and addressing the planning implications of an isolated lot, is to be based on at least one recent independent valuation and may include other reasonable expenses likely to be incurred by the owner of the isolated property in the sale of the property.
45 In Cornerstone the three principles in Melissa Grech were extended as follows.
…. for applications which will result in an isolated site, particularly where the planning controls envisage a greater intensity and size of development than currently exists on the site, such as a single dwelling in an area identified for residential flat buildings.
Two questions need to be answered:
Secondly, can orderly and economic use and development of the separate sites be achieved if amalgamation is not feasible?Firstly, is amalgamation of the sites feasible? In determining the answer to this question the principles set out by Brown C are relevant.
46 Karavellas adds that:
Inherent in the concept of whether amalgamation is feasible is whether it is also reasonable. ….I do not see it is the role of the Court to enter into negotiations on a final purchase price but rather to be satisfied that a reasonable offer has been made……
47 Adopting and applying those principles to the present case, I note that these principles were dealing with proposals which would result in a site being isolated by not being incorporated into an adjoining development site, whether required by planning controls or not. In this case DCP 4 aims to ensure orderly development by the delineation of lots to be consolidated and to rationalise access.
48 DCP 4 identifies the site and 34 Albert Avenue as a consolidated site, primarily to prevent vehicular access off Archer Street and Albert Avenue to minimise traffic impacts. The key question to answer is whether “special circumstances” exist to vary the site consolidation. These circumstances would include whether the purpose of consolidating the site can be achieved and whether consolidation is reasonably feasible.
49 The planning and traffic evidence is that consolidation would achieve a better planning outcome, but that separate development of the separate sites is still an acceptable planning outcome.
50 The valuation evidence and the history of negotiations indicate that it is feasible to consolidate the sites but there may be circumstances that make it unreasonable. I reach this conclusion based on the length and extent of negotiations that have occurred but have not resulted in a final agreement that can be reasonably implemented as part of this development application.
51 In examining the history of negotiations, a satisfactory arrangement between the owners of the sites may have been achieved if both parties had acted in a different manner. The negotiations prior to the hearing would have been greatly assisted by a joint valuation which was offered by the applicant but not agreed to by Hagino Pty Ltd. I do not accept Hagino Pty Ltd concern that it would be bound by the valuation to be a reasonable basis to reject the course of action. Clearly the independent valuation had no power to bind either party. I note that the initial offer made by the applicant, although not based on an independent valuation, was consistent with the subsequent valuation of Mr Dundas.
52 The negotiations after Mr Dundas valuation, although initially promising have not been successful, largely due to the applicant’s withdrawal from the process. While this process demonstrates that it is clearly feasible to amalgamate at least part of the sites, given the stage in the application, I do not consider that the collapse in negotiations should of itself be fatal to the application.
53 The Land and Environment Court website provides the following useful definition:
A planning principle is:
While planning principles are stated in general terms, they may be applied to particular cases to promote consistency. Planning principles are not legally binding and they do not prevail over councils’ plans and policies.statement of a desirable outcome from;
a chain of reasoning aimed at reaching; or
a list of appropriate matters to be considered in making
a planning decision.
Planning principles assist when making a planning decision – including:
where there is a void in policy; or
where policies expressed in qualitative terms allow for more than one interpretation; or
where policies lack clarity.
54 The principles in Melissa Grech are provided to assist in determining what are reasonable steps that need to be taken where the amalgamation of sites is potentially an issue. However, they should not be interpreted as being that an application must fail simply if it cannot be demonstrated that a reasonable offer has been made. The key question (irrespective of any planning principles that may be relevant) is whether the objectives of amalgamating the site will be able to be achieved even if the sites are developed separately.
55 In this appeal I find that the separate development of the sites, while not optimal, is reasonable, and achieves the objectives of DCP 4 relating to the orderly development, preservation of heritage items and provision of residential accommodation for the following reasons:
56 Firstly, the agreed traffic evidence is that vehicular access off Albert Street is acceptable, preferably with the provision of a median strip. The Traffic Committee will determine the final details or need for a median and will further consider the concerns of the Police. The absence of a median is not fatal to the application.
57 Secondly, the amalgamated site, largely due to the heritage incentive, can achieve greater development potential. However, the sites are both capable of achieving a reasonable level of development if developed separately. This needs to be considered within the context of 34 Albert Avenue being a heritage item under LEP 1995. The appropriateness of providing an access driveway to a basement car park within a few metres of the rear of the heritage cottage is a fundamental consideration as an appropriate curtilage for the cottage needs to be provided. The subdivision scheme indicates that it would be feasible to provide a townhouse development at the rear of 34 Albert Avenue. However, without the need to provide an access driveway across the site there would be an opportunity to provide separation between the heritage cottage and the townhouse, thereby providing an appropriate landscaped curtilage while still enabling reasonable development of site of the heritage item.
58 Thirdly, separate development of the sites will not leave 34 Albert Avenue as an isolated site with no development potential. Nor will it result in the bulk and scale of the development on the site being incompatible with development on 34 Albert Avenue. This is one of the key concerns articulated in the planning principles that deal with this issue.
59 The development of the separate sites therefore meets the objectives of DCP 4 for development in an orderly fashion. It will preserve identified heritage items while still achieving the objective to Maintain residential accommodation in this accessible location.
60 For the above reasons I find that “special circumstances” exist and that the application should not fail on the basis that the site is not consolidated with 34 Albert Avenue. The application should therefore be considered on its merits.
Parking
61 The proposal provides 18 car spaces. The traffic experts agreed that DCP 2 requires 15 resident parking spaces, but that there should be some flexibility in the application of the DCP rates in circumstances where the development is on the perimeter of the precinct and where impacts on on-street parking conditions is a competing objective of the council.
62 Mr Pindar and Mr Hallam considered that 16 resident spaces is supportable, whereas Mr Nettle initially considered the 18 spaces to be acceptable but accepted a reduction in one space to 17. Mr Nettle considered the exceedence to be acceptable on basis that the block is not wholly within the radius referred to in cl 1.10 of DCP 2 and therefore the parking rates for the Railway Precinct could be varied. Mr Nettle also considered that Council had not consistently applied DCP 2.
63 The experts also disagreed on whether the 5.2mm garage width was acceptable. Mr Hallam considered that the width did not comply with AS 2890.1 and should be increased to 5.4m. Mr Nettle and Mr Pindar considered 5.2m to be acceptable.
Findings
64 Under Clause 1.10 of DCP 2 the whole block is within the Railway Precinct if any part of the block is within the radius. I am satisfied that there is no evidence to justify that council has inconsistently applied DCP 2 to warrant a greater variation than that found to be acceptable by Mr Hallam and Mr Nettle. The reduction in car parking will also reduce the FSR exceedance and enable the car spaces to be increased to the more acceptable width of 5.4m thereby further reducing the FSR.
Floor Space Ratio
65 The proposal has an FSR of 0.82:1 which exceeds the control under cl 23 of WLEP 1995 of 0.7:1. The breach of the FSR development standard is wholly attributable to areas within the basement car park, including parking in excess of Council’s requirements. The above ground FSR is consistent with the 0.7:1 FSR development standard.
66 Clause 23 of WLEP 1995 does not include objectives for the standard. Ms Laidlaw considered the SEPP1 objection submitted by the applicant and stated that the underlying purpose of the FSR standard is to control visual bulk and intensity of use. In relation to the visual bulk Ms Laidlaw stated that the proposal does not “offend the objective of visual bulk, because that which is apparent from the public domain is no greater than 0.7:1”
67 Ms Laidlaw did not accept that the proposal was consistent with the objectives relating to intensity of use because of the provision of car spaces in excess of council requirements. However, she recognised that the traffic experts agreed that an additional car space above council requirements was reasonable and on this basis she accepted that excess FSR met the objectives of the standard. Further Ms Laidlaw stated that there were no amenity impacts that resulted from the FSR non compliance.
68 For these reasons Ms Laidlaw concluded that the SEPP1 objection was well founded, provided parking numbers were what is required to meet the demand generated by the development, and that Council’s policies had been consistently applied.
Findings
69 As stated above, the car park number should be reduced as agreed by Mr Hallam and Mr Pindar and the size of the car spaces increased. The FSR of the proposal would therefore be reduced but there would remain a none compliance with cl 23 of WLEP 1995. I accept Ms Laidlaw’s evidence as to the objectives of the standard and that the proposal, as amended would meet these objectives and that the SEPP 1 objection is well founded.
Landscape area and setback
70 Mr Czeref was concerned about the proximity of the development to the southern boundary and the access to the units along this boundary due to potential noise and overshadowing impacts with the adjoining properties. He considered that a “mews” development to be more appropriate. Ms Laidlaw recognised that the relationship was not optimal but considered that as the proposal complied with the setback and height controls and that the impacts were consistent with a “compliant “ development and not a reason for refusal.
Findings
71 I accept Ms Laidlaw’s evidence. The townhouses are set back a minimum of 4m from the southern boundary with landscaping between the boundary, the access path and the townhouses. Providing access along the boundary enables the townhouses to orientate the indoor and outdoor living areas towards the north and eliminates potential conflict between the outdoor living areas and adjoining properties. The impacts of the proposal are acceptable and not a reason for refusal.
Orders
72 For the above reasons the Orders of the Court are:
1. The appeal is upheld.
2. The development application (DA 2005/809) to demolish three existing dwellings and construct twelve townhouses with underground parking at 57-61 Archer Street, Chatswood, is approved subject to the conditions in Annexure A.
__________________3. The exhibits, except exhibits 8, A and B, may be returned.
Annelise Tuor
Commissioner of the Court
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