Benson McCormack Pty Ltd v Northern Beaches Council

[2018] NSWLEC 1117

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Benson McCormack Pty Ltd v Northern Beaches Council [2018] NSWLEC 1117

Hearing dates:

22, 23 February 2018

Date of orders:

18 April 2018

Decision date:

07 March 2018

Jurisdiction:

Class 1

Before:

Brown C

Decision:

The Court orders:

(1)     Leave is granted to rely on the amended plans at Condition 1 in Annexure A.

(2)     The cl4.6 written request, dated March 2018, provides sufficient justification for a variation to the height development standard in cl 4.3 of Many LEP 2013.

(3)     The appeal is upheld.

(4)     Development Application No. 152/2017 for the demolition of all existing structures and construction of shop top housing development with strata subdivision at 31 Dobroyd Road, Balgowlah Heights, is approved subject to the conditions in Annexure A.

(5)     The exhibits are returned with the exception of exhibit 4.

Catchwords:

DEVELOPMENT APPLICATION: demolition of all existing improvements and construction of shop top housing; excessive height; inadequate landscaping; inadequate acoustic and visual privacy; view loss; poor streetscape appearance; resident concerns

Legislation Cited:

Environmental Planning and Assessment Act 1979
Manly Local Environment Plan 2013
State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development

Cases Cited:

Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21

Texts Cited:

Building Code of Australia

Category:

Principal judgment

Parties:

Benson McCormack Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Mr G McKee, solicitor (Applicant)
Mr A Hudson, solicitor (Respondent)

McKees Legal Solutions (Applicant)
Willshire Webb Staunton Beattie (Respondent)

File Number(s):

2017/264046

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No. 152/2017 for the demolition of all existing structures and construction of shop top housing development with strata subdivision at 31 Dobroyd Road, Balgowlah Heights (the site).

2. The proposed development seeks approval for eleven car parking spaces (two retail, two visitor and seven residential), nine bicycle parking spaces, two retail premises, and services on the ground floor. The first floor contains five two-bedroom residential apartments and the second floor contains two three-bedroom residential apartments.

3. The council filed a Statement of Facts and Contentions that identified the following areas where it was considered that the application should be refused:

• excessive height,

• inadequate landscaping, including deep soil zones,

• inadequate acoustic and visual privacy,

• view loss, and

• poor streetscape appearance.

4. Prior to the hearing the applicant provided amended plans that sought to address the concerns raised by the council. This resulted in the contentions relating to excessive height, view loss and visual privacy not being pressed by the council. The contention relating to streetscape appearance focused on the need for additional deep soil zones rather than building design or presentation to the street.

5. A number of residents provided evidence on site and maintained that the application should be refused for the following reasons:

• conflict from commercial activities with adjoining and nearby residential land uses in relation to operating hours, odours, waste disposal,

• excessive height , bulk and scale,

• overshadowing,

• contamination from existing service station tanks,

• change in character for the area,

• loss of privacy,

• loss of views, and

• traffic/additional on street parking.

The site

6. The site is irregular in shape and has an area of 793 8sqm and is located on the southern side of Dobroyd Road. The boundaries of the site are Dobroyd Road to the north (front), five retail premises to the east, Commerce Lane to the south and a two storey dwelling to the west.

7. The existing ground level of the site is the subject of extensive excavation to facilitate the site being originally used as a service station and later for mechanical repairs. The excavation of the original topography has resulted in the southern and western boundaries having retaining walls up to 4.0m high. The excavation provided for a level area for vehicle access, manoeuvering and building construction for the service station.

8. The surrounding area is largely residential in nature except for the previous service station located on the site and the adjoining five retail premises.

Relevant planning controls

9. The site is is within the B1 Neighbourhood Centre zone under Manly Local Environment Plan 2013 (LEP 2013). The proposed development is permissible as “Shop top housing” in the zone, with consent. Clause 2.3(2) provides that the Court must have regard to the B1 zone objective when considering the application. The B1 zone objective is:

•  To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.

10. Clause 4.3 provides the site with a maximum permitted building height of 8.5m. The parties agreed that the maximum height did not comply with the 8.5m development standard although the council accepted that the variation could be supported. In any event, a written request under cl 4.6 of LEP 2013 needs to be provided to show why the proposed variation is acceptable in the circumstances of this application.

11. Clause 4.4 provides a maximum floor space ratio (FSR) of 1:1 for the site. The proposed development satisfies this standard.

12. Manly Development Control Plan 2013 (DCP 2013) applies. The relevant parts include Streetscape (pt 3.1.1), Sunlight and Overshadowing (pt 3.4.1), Privacy and Security (pt 3.4.2), Maintenance of Views (pt 3.4.3) and Neighbourhood Centres (LEP Zone B1)( pt 4.2.8)

13. State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl 28(2)(c)).

Should the height development standard be varied?

The evidence

14. Expert town planning evidence for the council was provided by Ms Claire Ryan and for the applicant by Mr Robert Chambers. Mr Chambers prepared the cl 4.6 written request that seeks to justify the variation to the 8.5m height standard. The written request addresses those matters set out in cl 4.6 and were accepted by Ms Ryan as providing sufficient justification to support the variation.

The statutory requirements

15. Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly state:

4.6   Exceptions to development standards

(1)  The objectives of this clause are as follows:

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless:

(a)  the consent authority is satisfied that:

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

Height standard objectives

16. The objectives of the building height control in in cl 4.3 of LEP 2013 are;

4.3   Height of buildings

(1)  The objectives of this clause are as follows:

(a)  to provide for building heights and roof forms that are consistent with the topographic landscape, prevailing building height and desired future streetscape character in the locality,

(b)  to control the bulk and scale of buildings,

(c)  to minimise disruption to the following:

(i)  views to nearby residential development from public spaces (including the harbour and foreshores),

(ii)  views from nearby residential development to public spaces (including the harbour and foreshores),

(iii)  views between public spaces (including the harbour and foreshores),

(d)  to provide solar access to public and private open spaces and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings,

(e)  to ensure the height and bulk of any proposed building or structure in a recreation or environmental protection zone has regard to existing vegetation and topography and any other aspect that might conflict with bushland and surrounding land uses.

What is the variation to the height development standard?

17. The Dictionary to LEP 2013 provides the following relevant definitions:

building height (or height of building) means:

(a)  in relation to the height of a building in metres—the vertical distance from ground level (existing) to the highest point of the building, or

(b)  in relation to the RL of a building—the vertical distance from the Australian Height Datum to the highest point of the building,

including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.

ground level (existing) means the existing level of a site at any point.

18. Ground level (existing)" is predominantly at or around RL 64.0m. Measured from existing ground level to the top of the roof of the lift motor room (which occupies only 0.6% of the site area), the amended plans have a maximum height of 10.5m which exceeds the 8.5m height limit which applies to the site. Level 3 (which occupies around 30% of the site area) also exceeds the 8.5m height limit when measured from existing ground level. The roof of Level 3 is at RL73.9m AHD which equates to a height of 9.9m therefore there is a consistent breach across the site of around 1.4m or 1.8m measured to the top of the parapet surrounding the roof (excluding the lift overrun). This is shown diagrammatically in Drawing A-1104 in Exhibit A.

19. If the estimation of the natural ground level of the site (that is, prior to any excavation) was to be taken into consideration, the extent of non-compliance with an 8.5m height limit would be confined to the northern part of the rooftop lift motor room and the leading (i.e. northern) edge of Level 3. This is shown diagrammatically in Drawing A-1103 in Exhibit A.

Written request response to the height objectives

20. In relation to the height objectives, the written request states in relation to objective (a) that the natural ground level of the site has been affected by previous earthworks to level the site and is anomalous in the context of immediately adjoining land and of the local topography. This results in a difference of 4 m from existing ground level at the rear of the property to Commerce Lane. The proposed building has been designed having regard for the topography of the adjoining land and topographic landscape of the surrounding locality. The parts of the building that exceed the maximum building height are sufficiently setback from the side and rear boundaries and will not be visually dominant when viewed from surrounding public and private places. The height of the building with its flat roof form is appropriate on this site and is generally compatible with other buildings in the locality.

21. Objective (b) is satisfactorily addressed as the building has been designed to minimise its apparent bulk and scale when viewed from the street. It is sufficiently setback from the front, side and rear boundaries to provide a reduced bulk when viewed from the public realm or adjoining properties.

22. The proposed development will have no unreasonable impacts on views to, or from nearby residential development to, or to from public spaces or views between public spaces when tested against objective (c). The most likely impacts on northerly district outlook will be on the two adjoining properties to the south of Commerce Lane (26 and 28 Nolan Place). The dwellings on these properties are on land elevated above the site and are of mainly single storey construction. In relation to 28 Nolan Place, the upper level of the proposal occupies 30% of the site area and its lowering as part of the amended plans to a height of 9.9m has ensured that no unreasonable view impacts will arise. In relation to 26 Nolan Place, the two storey part of the proposed development immediately to its north is 6.55m high and within the height limit of 8.5m. Until relatively recently, the existing outlook from 28 Nolan Place over the site was partly obstructed by a large tree located adjacent to Commerce Lane.

23. In relation to objective (d), the non-compliant building height will not block solar access to the private open spaces or habitable rooms of adjacent dwellings to the south to any significant degree. Objective (e) is not applicable.

Is strict compliance with variation unreasonable and unnecessary?

24. The written request states that strict compliance is unreasonable and unnecessary in the circumstances of the case. There are sufficient environmental planning grounds to justify non-compliance for the following reasons: -

• the greater part of the proposed building that exceeds the maximum height is towards the rear of the site in the area that has been previously excavated for site leveling, making that part of the site significantly lower than the surrounding natural ground level including along Commerce Lane;

• the characteristics of the site (i.e. with the cutting and having both street and lane frontages) are such that it can accommodate the additional building height as part of a suitable design response to the site's context;

• the uppermost level of the proposed building is sufficiently setback from the site boundaries to minimise the impacts of its height on adjoining properties and on the public realm;

• the proposed development meets the objectives of the building height development standard.

25. Overall, the proposal will deliver a well-designed, high-quality mixed-use development which will provide additional housing opportunities for new residents with good amenity without unreasonably diminishing the amenity of any existing residents in the locality, including immediate neighbours. The inherent characteristics of the site, including its topographic form, orientation, street and lane frontages, surroundings and proximity to facilities, make the site eminently suitable for implementing a mixed-use development in the form proposed which is compatible with the surrounding built environment.

26. It can be concluded that strict compliance with the building height standard is unreasonable and unnecessary in the circumstances of the case. Also, there are sufficient environmental planning grounds to justify the non-compliance and that the proposal is in the public interest because it is consistent with the objectives both of the building height standard and of the B1 Neighbourhood Centre zone.

Findings - the assessment framework

27. The agreed position of Mr Chambers and Ms Ryan was that the variation to the height standard can be supported however this must also be the position of the Court if the application is to proceed to a merit assessment. The Court is not bound to accept the agreed position of Mr Chambers and Ms Ryan.

28. Clause 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

29. In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]:

The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.

30. A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

The zone objective

31. The zone objective is broad and relates largely to land uses and is not particularly helpful in dealing with the question of whether a variation to the height standard is appropriate. The lack of relevance of the zone objective to the variation of the height development standard should not be a matter that acts in a negative way so pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the zone objective.

The height objectives

32. The height standard objectives raise a number of different aspects and these can be summarised as;

• is the building height and roof form consistent with the topographic landscape, prevailing building height and desired future streetscape character in the locality,

• is the bulk and scale of building adequately controlled,

• does the building minimise disruption between, to and from views to nearby residential development from public spaces (including the harbour and foreshores), and

• does the building provide solar access to public and private open spaces and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings.

33. There was no issue raised over the roof form or provision of solar access however the residents almost universally raised concern over the height from the streetscape perspective of Dobroyd Road and also from the rear where the height was largely associated with the loss of district views that are currently enjoyed from at least three properties in Nolan Place. The views currently are available from the rear of the dwellings because of the excavation on the site and the single storey form of the existing disused service station building.

34. Mr Chambers and Ms Ryan agree on the extent of the breach of the height standard using the definition of “building height” and “ground level (existing)” in the Dictionary to LEP 2013. This was a breach of 1.4m to the roof level or 1.8m to the top of the parapet. What Mr Chambers and Ms Ryan further agree on is that cl 4.6 can be used to support the identified breach of 1.4m because of the excavation of up to 4m carried out to accommodate the service station. As part of this consideration, Mr Chambers and Ms Ryan accepted the estimation of what was likely the natural ground level shown on the architectural plans, prior to the excavation for the service station. Using the estimated natural ground level, Mr Chambers and Ms Ryan conclude that the breach of the 8.5m maximum height level is limited to part of the roof, the northern parapet, small sections of the eastern and western parapets and part of the extension of Level 3 roof that provides an awning for the unit below (Drawing A-0222, Exhibit A). The actual breach of the 8.5m maximum height standard could not be accurately determined due the height above the existing ground level being measured to the hypothetical ground level prior to excavation. From the architectural plans, the breach appears to be in the order of 300-400mm. For the reasons set out in the cl 4.6 written request, this breach is acceptable to Mr Chambers and Ms Ryan.

33. In considering the approach adopted by Mr Chambers and Ms Ryan, I accept that it is appropriate in the circumstances. It is a legitimate use of cl 4.6 to address a site that has been excavated or where there are other topographical irregularities on a site that affect the reasonable assessment of height. Clause 4.6 provides the mechanisms to determine whether any variation is appropriate.

34. In coming to this conclusion, I do not fully accept the final conclusion of Mr Chambers and Ms Ryan. I have accepted that the estimation of what was likely the ground level shown prior to excavation as shown on the architectural plans (Exhibit A) although this was not accepted by at least one of the residents in Nolan Place because of certain geological features that were visible on the site inspection. There was no evidence to support or deny the observations so I have relied on the hypothetical natural ground level shown on the architectural plans.

35. In adopting the hypothetical natural ground level, I see no reason why the applicant should breach the maximum height of 8.5m when measured from the hypothetical ground level, prior to excavation. The breach of the 8.5m maximum height level is limited to part of the northern section of the roof, the northern parapet, small sections of the eastern and western parapets and part of the extension of Level 3 roof that provides an awning for the unit below. The area of the breach has a direct impact on the existing views from the properties in Nolan Place and any view loss above the 8.5m height should not be accepted. (excluding the lift overrun which occupies only a small area).

36. This is not fatal to the application however an opportunity will be given to the applicant to provide plans that do not breach the 8.5m maximum height based on the likely ground level shown prior to excavation as shown on the architectural plans. A revised cl 4.6 written request is also required as are amended conditions of consent to reflect the amended plans.

37. The matter of view loss from the three properties in Nolan Place was raised by the residents of these properties on the site inspection and with the further reduction in the height of the building, I am satisfied that the objectives in cl 3.4.3 Maintenance of Views of DCP 2013 are satisfied. These objectives are:

Objective 1) To provide for view sharing for both existing and proposed development and existing and future Manly residents.

Objective 2) To minimise disruption to views from adjacent and nearby development and views to and from public spaces including views to the city, harbour, ocean, bushland, open space and recognised landmarks or buildings from both private property and public places (including roads and footpaths).

Objective 3) To minimise loss of views, including accumulated view loss 'view creep' whilst recognising development may take place in accordance with the other provisions of this Plan.

Inadequate landscaping, including deep soil zones

The evidence

40. The council contention centres on the relationship with the adjoining residentially zoned property at 22 Vista Avenue. The site provides no landscaped setback and also provides part of a proposed unit with a zero setback to the common boundary to this property. The contention relating to the inadequacy of the deep soli zones comes from the requirements of the AGD to provide 7% of the site area for this purpose.

41. Mr Chambers states that the site does not adjoin any residentially zoned land along the western side boundary as there is a narrow strip of B1 Neighbourhood Centre zoned land separating the site from the residentially zoned part of 22 Vista Avenue.

42. Mr Chambers notes that the owner of 22 Vista Avenue is not an objector to the proposal and actually supports the proposal. There is no disbenefit from the absence of deep soil planting along the western boundary of the site because there is an existing significant level difference between the site and 22 Vista Avenue. The 4m ground level difference effectively negates any benefit of providing deep soil planting on the site adjacent to the common side boundary with 22 Vista Avenue. The variation of the DCP side boundary setback landscaping requirement (even if it was to strictly apply) is reasonable in the circumstances.

43. Mr Chambers accepts that cl 3E of the ADG requires that the site provide 7% of the site as deep soil zones (55.6sqm), with a minimum dimension of 3m however the site provides 4% of the site as deep soil zones (31.8sqm). The site is currently fully paved and provides no deep soil zones. The applicant proposes additional areas of deep soil planting adjacent to the site through removal of existing concrete driveways within the road reserve; the areas of additional deep soil planting comprise 91.99sqm through removal of the eastern driveway and 72.73sqm through reduction in the width of the western driveway. This needs to be compared to the ADG deficit of only 21.8sqm, according to Mr Chambers.

44. Ms Ryan states that he narrow strip to the west between the site and 22 Vista Avenue, referred to by Mr Chambers, is an anomaly and is not a formal parcel of land or road reserve. Even if the strip were considered a formal parcel of land, the strip is not developable in its own right, thereby providing no buffer between the site and adjacent R2 zoned land. The strip is currently built upon by 22 Vista Avenue, thereby acting as residentially zoned land.

45. The future development of the proposal must also be considered and while the current owner of 22 Vista Avenue may be satisfied with the proposal, the exclusion of deep soil planting along the western side boundary (and subsequent building to the western boundary on the site) unreasonably limits the development potential of 22 Vista Avenue and limits the visual amenity of the site and adjacent site.

46. In terms of deep soil zones; Ms Ryan states that space exists on site to provide adequate and compliant deep soil zones. A reduction in the proposed outdoor seating to the cafe would result in compliance with the requirement, without unreasonably impacting on the viability of the proposed development. This outcome is more in keeping with the generally low density residential context of Dobroyd Road than additional cafe seating, and will therefore provide greater amenity to the locality, given this context. Additional cafe seating is more appropriate in a higher density area.

47. While the removal of the surplus driveway and the inclusion of landscaping within the public domain (council-owned road reserve) assist with the softening of the development to the streetscape, the elements beyond the boundaries of the site cannot be relied upon for amenity, as they are not in the same ownership as the site and may be altered at any point.

Findings

48. Clause 4.2.8.3(b) states: -

4.2.8.3 Landscaping

Note: While LEP Zone B1 Neighbourhood Centres is not subject to the Minimum Residential Total Open Space and Landscaped Area requirements at Figure 34 and mapped at Schedule 1 - Map B in this plan; the objectives for landscaping and open space at paragraph 4.1.5 of this plan are to be met alongside the guidelines in this paragraph.

(a) .

(b) All side and rear setbacks to boundaries adjoining land zoned Residential in the LEP (excluding laneways) are to be developed for deep soil planting to allow for the retention/ establishment of a mature tree landscape buffer.

Part of this setback may be used for vehicular access, parking or service delivery that is identified in certain localities as provided in this Plan at paragraph 4.2.8.5 and Schedule 2 (Townscape Principles), if the applicant can demonstrate to Council's satisfaction that: the area will be capable of sustaining sufficient deep soil planting to protect the privacy of neighbouring residential properties.

49. While I understand and accept the rationale in cl 4.2.8.3(b) is to provide landscaping to all side and rear setbacks to boundaries adjoining land zoned residential (excluding laneways) for deep soil planting; the site presents significant practical problems in achieving this because of the existing excavation on the boundary with 22 Vista Avenue. It is only the boundary with 22 Vista Avenue that is in conflict with in cl 4.2.8.3(b) as the other frontages adjoin Commercial Lane and the existing retail tenancies. While not optimal, I am satisfied that the proposal is acceptable in its current form.

50. Similarly, I accept that a reduction in the proposed outdoor seating to the cafe to allow compliance with the deep soil zone requirement is unnecessary in this case. In my view, the area that Ms Ryan suggests be changed from outdoor dining to deep soil is well connected to adjoining retail tenancy and directly adjoins a well-established tree with a good canopy. Given the generous setback to Dobroyd Road, the offer by the applicant to remove some 165sqm of hard surface in the road reserve and replace with landscaping, the relatively small area in question, the significant existing vegetation that is to be retained in the road reserve and the good amenity of this area for residents; I am satisfied that the greater benefit is to have the area retained as outdoor dining.

Inadequate acoustic privacy

51. This contention states that the proposed development does not provide adequate acoustic privacy in that noise sources are located adjacent to bedrooms. The contention relies on Objective 4H-1 of the ADG, the "Design Guidance" includes: -

Noise sources such as garage doors, driveways, service areas, plant rooms, building services, mechanical equipment, active communal open spaces and circulation areas should be located at least 3m away from bedrooms.

52. Objective 4H-2 of the ADG states: -

Noise impacts are mitigated within apartments through layout and acoustic treatments.

53. Ms Ryan states that the proposed development does not satisfy Objective 4H-1 and Objective 4H-2 of the ADG as in some areas bedrooms adjoin circulation spaces, living rooms adjoin bedrooms and bedrooms adjoin balconies.

54. Mr Chambers states that there is no specific reference in the "Design Guidance" of the ADG to requiring bedrooms to be separated from the rooms and outdoor open space of other dwellings in the same development. Also, the ADG does not classify circulation spaces (eg stairs), living rooms, balconies and terraces as noise sources. Appropriate acoustic insulation governed by relevant deemed-to-satisfy requirements in Section F5 (Sound Transmission and Insulation) in Volume 1 of the Building Code of Australia will ensure adequate and satisfactory vibration and acoustic sound insulation between adjoining dwellings and between dwellings and common areas.

55. I agree with the conclusions and reasoning of Mr Chambers on this contention.

Resident concerns

56. Those matters raised by the residents, and not addressed earlier in the judgment include:

Conflict from commercial activities with adjoining and nearby residential land uses in relation to operating hours, odours, waste disposal.

57. The uses that will occupy the two retail tenancies should be required to obtain development consent where the particular characteristics of the use can be assessed.

Overshadowing

58. The shadow diagrams accompanying the architectural plans (Exhibit A, Drawings A-1301 to A-1305) to not indicate any unreasonable overshadowing impacts

Contamination from existing service station tanks

59. Contamination of the site is satisfactorily addressed in the JBS&G report (September 2016), subject to a number of recommendations.

Change in character for the area

60. The character of the B1 zoned land that includes the site will be different to the character of the surrounding residentially zoned land because of the commercial nature of B1 zoned land. The form of the proposed development is consistent with what could be expected in the B1 zone.

Loss of privacy

61. Mr Chambers and Ms Ryan address this matter in their joint report. For 20 Vista Avenue the bedroom windows are setback 2.7m from the rear site boundary. Between the rear site boundary and rear boundaries of 26 and 28 Nolan Place is Commerce Lane which is 6.0m wide. The two dwellings on 26 and 28 Nolan Place have a rear setback to Commerce Lane of around 7.5m - 13.0m for the former, and 7.0m - 10.0m for the latter. As a consequence the horizontal separation between the bedroom windows on Level 3 of the proposal and the nearest north facing windows in 26 Nolan Place and the north facing windows in 28 Nolan Place varies between around 16.8m and 22.3m.

62. The setback of the proposed development from the rear boundary of 26 and 28 Nolan Place, taking into account the width of Commerce Lane, is 7.90m (Level 2 Bedroom 2 and Bathroom openings) and 9.15m (Level 3 Bedroom 1 and Bedroom 2 openings). The distance between the living areas in 28 Nolan Place to the south and the south facing bedroom windows on Level 3 of the proposal is around 21.7m.

63. Mr Chambers and Ms Ryan state that these setbacks clearly satisfy building separation guidelines in the ADG for development of the scale proposed. I concur with their conclusions.

Traffic/additional parking

64. As I understand, the proposed development satisfies the council requirements for car parking as it was not a contention in the proceedings.

Directions

65. The applicant is to provide amended plans that reduce the maximum height of the proposed building so that no part of the building exceeds the hypothetical ground line, prior to excavation, shown on the architectural plans (Exhibit A).

66. A revised cl 4.6 written request is to be provided with the amended plans. The council is to file agreed conditions of consent that reflect the amended plans. The amended plans, revised cl 4.6 written request and conditions are to be filed by 28 March 2018. Final orders will be made in chambers.

Addendum made on 18 April 2018

67. In accordance with the terms of directions in paragraph [65-66] of my judgment of 7 March 2018 the parties provided me with the agreed conditions of consent. I am satisfied firstly that consent to the application should be granted, as the appeal is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979, and that the conditions of consent accord with my findings.

68. Accordingly I make orders in chambers as follows:

1. Leave is granted to rely on the amended plans at Condition 1 in Annexure A.

2. The cl4.6 written request, dated March 2018, provides sufficient justification for a variation to the height development standard in cl 4.3 of Many LEP 2013.

3. The appeal is upheld.

4. Development Application No. 152/2017 for the demolition of all existing structures and construction of shop top housing development with strata subdivision at 31 Dobroyd Road, Balgowlah Heights, is approved subject to the conditions in Annexure A.

5. The exhibits are returned with the exception of exhibit 4.

______________

G Brown

Commissioner of the Court

Annexure A (102 KB, pdf)

Amendments

18 April 2018 - Final Orders added.

Decision last updated: 18 April 2018