Bettar v Council of the City of Sydney

[2012] NSWLEC 1342

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bettar v Council of the City of Sydney [2012] NSWLEC 1342

Hearing dates:

13 December 2012

Decision date:

14 December 2012

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

1. The appeal is allowed.

2. Development consent is granted to Development Application No D/2012/892 for the demolition of existing buildings and construction of a mixed use development at 791-795 Botany Road Rosebery subject to the conditions in Annexure A.

3. The exhibits may be returned except A, 2, 3, 4, 5.

Catchwords:

Development application: Mixed use development, building height, FSR, access, amenity impacts.

Legislation Cited:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 65
State Environmental Planning Policy No 55
Draft Sydney Local Environmental Plan 2011
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan 1997
Draft Sydney Development Control Plan 2010
South Sydney Development Control Plan 2010
City of Sydney Contaminated Land Development Control Plan 2004
South Sydney Development Control Plan No 11 - Transport Guidelines for Development 1996

Category:

Principal judgment

Parties:

Mr Paul Bettar (Applicant)

City of Sydney Council (Respondent)

Representation:

Mr V Conomos (Applicant)
Of Conomos Legal

Mr A Singh (Respondent)
Council of the City of Sydney (Respondent)

File Number(s):

10852 of 2012

Judgment

Background

1. This appeal was lodged against council's deemed refusal of a development application for the demolition of an existing building and construction of a mixed-use development at 791-795 Botany Road Rosebery.

1. The proposed development comprised:

• 71 residential units
• 5 ground floor commercial suites
• 3 ground floor retail units
• basement car parking for 44 vehicles.

1. The site has an area of 2,538 m2 and a 35.2 m frontage to Botany Road. It is in an area where significant redevelopment is occurring.

1. The contentions identified for the appeal are summarised as:

(1)   Land contamination; in terms of whether the site is suitable for the proposed development.

(2)   Acid sulphate soils.

(3)   Vehicular access, concerning service vehicle access to Jones Lane.

(4)   Solar access; concerning impact on the adjoining development at 797-807 Botany Road, located to the south.

(5)   Height: in terms of the original proposals exceedance of the 12 m height control under the South Sydney Development Control Plan 2010 (South Sydney DCP) and its consistency with "good design" principles in State Environmental Planning Policy 65 (SEPP 65).

This contention also concerns the exceedance by the proposal of the six-storey hight limit.

(6)   FSR: concerning exceedance of the 1.5:1 FSR control under the existing South Sydney DCP and the 2.1 FSR control under the Draft Sydney Local Environmental Plan.

(7)   Unit Mix: concerning the proposed unit mix is inappropriate and as it does not provide for a diversity of apartment typologies. Diversity in apartment typologies is required in order to ensure a range of housing choices are available to suit different household requirements now and into the future. This will ensure an equitable level of access to new housing by different cultural and socio-economic groups.

(8)   Internal Amenity.

(9)   Public Interest: concerning amenity impacts on the neighbouring residents' apartment building (Powerhouse).

1. The appeal commenced by way of a s 34 conference and the parties addressed the contentions and inspected the site and surrounding premises.

1. This resulted in a number of amendments to the proposal with the number of units being reduced to 65 and 40 car spaces being provided. The changes also include:

(1)   Modification to mix revised to 18 x studios (28%), 18 x 1 beds (28%), 23 x 2 beds (35%) and 6 x 3 beds (9%). Reduction in overall yield to 65 units.

(2)   Reduction in overall FSA (GFA) by 307 sq m (from 5,612 sq m to 5,305 sq m) reducing proposed FSR to 2.09:1.

(3)   Decrease in height of lift overrun (4 m reduced to 3.2 m utilising Schindler lift).

(4)   Removal of all level 6 roof terraces.

(5)   Removal of upper floor of centre units (re-allocated units 5.06 and 5.07) at Level 6 and associated reconfiguration at Level 5 to delete internal stairs and provide for 1 x 1 bed + study (5.06) and 1 x 2 bedroom unit (5.07) in lieu of 2 x 3 bedroom units.

(6)   Introduction of 4 m setback to West (Botany Rd) boundary at levels 4 and 5 to allow for protection of view to Unit 4.01 in the neighbouring development. Associated modifications to plans, sections and elevations including revised mix (previously 7 x 1 bed at level 4 and 5 x studio at level 5 replaced by 2 x 2 bed and 2 x 1 bed at level 4 and 2 x 3 bed at level 5).

(7)   Reconfiguration of Northern stair to allow for improved sunlight and visual amenity to balcony for units 1.09, 2.09, 3.09, 4.05 and 5.03.

1. These amendments have been subject to further assessment by the traffic experts and the planning and urban design experts resulting in their agreement that the contentions have now all been satisfactorily resolved and the amended development now merits conditional consent.

1. Despite there being no remaining issues, the council is unable for procedural reasons to enter a s 34 agreement.

1. Therefore the s 34 conference was terminated and the matter proceeded for determination.

1. The determination then involved further oral evidence from three owners of the adjoining (Powerhouse) development who have concerns about:

• Loss of amenity, including views, privacy and solar access
• Size and scale of proposed buildings
• Side setbacks

1. These concerns were discussed in joint expert conferencing by:

• Ms C Ch'ng; Council's urban designer
• Ms M Andreou; Council's planner
• Ms G Morrish; Architect/urban design
• Mr A Betros; Consulting planner

1. The joint traffic report was prepared by:

• Mr G Pindar - Applicant's consultant
• Mr A Aspen - Council's traffic expert

The site

1. The site is described as Lots 51 and 52 in DP 815178 and it has a total area of 2,538 sq m. It contains two double storey former warehouse buildings. The front façade of 791-793 Botany Road has been re-clad and 795 Botany Road maintains a front rendered finish. The buildings are setback 9.3 m from the kerb of Botany Road. The eastern portion (rear) of the site is unbuilt upon and is currently used as a hardstand car park area and servicing, with vehicular access from Jones Lane. This vehicle access and hardstand car park contains a right of carriageway in favour of the site at 134-138 Dunning Avenue.

1. Directly adjacent to the south of the site is the property known as 797-807 Botany Road which contains a building that is identified as a local heritage item under the South Sydney Local Environmental Plan 1998.

1. This heritage item directly adjacent to the southern boundary of the site is of local heritage significance. This building is the former British General Electric Company building, which is an Inter-War Deco style industrial building. The building has previously been approved by the former South Sydney Council (DU/2002/1184) for conversion into a mixed-use development comprising 110 apartments, 8 retail spaces and parking. This consent has subsequently been modified under the provisions of s 96 of the Environmental Planning and Assessment Act 1979. This development has been recently completed.

Planning controls

1. The subject development is subject to the following controls:

• State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) including the Residential Flat Design Code (RFDC).
• State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55).
• South Sydney Local Environmental Plan 1998 (South Sydney LEP); under which the site is located in the 'Mixed Uses 10 zone'.
• South Sydney Development Control Plan 1997 (South Sydney DCP). It imposes a maximum height control of 12 m and maximum FSR of 1.5:1.
• The City of Sydney Contaminated Land Development Control Plan 2004 (Contaminated Land DCP).
• Draft Sydney Local Environmental Plan 2011 (Draft Sydney LEP); under which it is zoned in the B6 Enterprise Corridor zone. This DLEP imposes a maximum height of 22 m and maximum FSR of 2:1 on the site.
• Draft Sydney Development Control Plan 2010 (Draft Sydney DCP).
• South Sydney Development Control Plan No 11 - Transport Guidelines for Development 1996 (South Sydney DCP 11)
• Council of the City of Sydney Policy for Waste Minimisation in New Developments

The evidence

1. As noted initially, the respective experts have agreed that the contentions are satisfied and that the amended proposal merits conditional consent. The joint planning conferencing and report has also considered the amenity impacts raised by the objectors.

1. Insofar as there is no challenge to the expert evidence, I have considered it on the following basis:

Traffic

1. The traffic experts agree that the amended layout for the basement and ground floor level enables satisfactory access for council's standard (9.5 m long) waste collection truck to stand within Jones Lane parallel to the kerb and to collect the bins from the rear of the trucks in a short period.

1. I rely on the traffic expert's agreement that this matter can be covered by conditions of consent.

Planning matters

1. Following the submission further details, I accept that the issues of land contamination, acid sulphate soils and solar access are satisfied, subject to appropriate conditions.

Solar access

1. The assessment of the updated solar access diagrams has resulted in agreement by the experts that solar access is satisfactory, according to council's solar access controls. According to Mr Betros:

The diagrams demonstrate that the majority of units within the southern neighbouring property which are adjacent to the southern boundary of the subject site will maintain well in excess of the 2 hours sunlight required to be retained to 50% of their private open space areas and 1 sq m of their living areas between 9 am and 3 pm on June 21.

1. Furthermore, he says that:

The diagrams demonstrate that virtually all units will receive uninterrupted sunlight from 10.30am until 3 pm on June 21, a period of 4.5 hours which is more than double that required.

Furthermore, the equinox diagrams for March 21 demonstrate that there will be virtually no shadow impact from the development to any unit adjacent to the southern boundary of the subject site.

This exceptional outcome demonstrates the appropriate bulk, scale, siting and height of the proposal.

In this regard, the proposal significantly outperforms the side setback requirement from the southern boundary to 797-807 Botany Rd.

The southern side setbacks of 11.3 m from levels 1-4 from level 5 and 18.5 m for the uppermost level significantly outperform the required southern side setback of 5.5 metres.

The reasonableness of these setbacks are highlighted by the comparison of these southern side setbacks with the southern neighbour's northern side setbacks which contribute to the overall building separation.

The subject proposal contributes 11.3 m of the 17.3 m separation distance for levels 1-4, 13 m of the 19 m separation distance for level 5 and 18.5 m of the 24 m separation for the 6th floor (7th storey). At each level, the proposal contributes 65-75% of the required separation distance.

Full compliance with the overall imminent statutory height limit of 22 metres is achieved while the part 7th storey occupies just 3% of the overall gross floor area.

The combination of these factors demonstrate that the proposal represents a reasonable and appropriate building envelope on the subject site.

1. This conclusion is supported by Ms Morrish on the basis that:

The majority of the apartments next door will achieve more than 2 hrs sunlight to 50% of their POS and 1 sq m of living areas as required. This is a high quality outcome for such an urban location where the adjoining development has located apartments looking towards side boundary condition.

The diagrams demonstrate that the majority of units within the southern neighbouring property, which are adjacent to the southern boundary of the subject site, will maintain well in excess of the 2 hours sunlight required to be retained to 50% of their private open space areas and 1 sq m of their living areas between 9 am and 3 pm on June 21.

The lack of any real impact from the subject development to the adjoining property shows that this is a high quality design that seeks to maximise amenity to all properties. It has been carefully considered and sculpted to ensure solar access is provided and maintained.

To achieve these outcomes the proposal more than meets the separation requirements of the RFDC providing from 11.3 - 18.5 m from the southern boundary which far exceeds the requirement and the separation provided by the adjoining property. In fact the subject development is providing some 65% or more of the final separation between the two developments and has been very careful to minimise opportunities for overlooking or privacy impacts.

The proposal has achieved a high quality outcome in relation to solar access.

1. I rely on these opinions that this issue is reasonably satisfied.

Height

1. The essence of this issue concerns the proposed amendments to the existing height controls whereby the existing DCP 1997 has a 12 m maximum height, which is to be replaced by a 22 m height in the DLEP.

1. It appears from the evidence that the approval of the DLEP is imminent and certain and the increased height will apply.

1. The experts support the amended building design/height on the following basis.

· The height on the subject site is considered to be justified given the proposed height along the Botany Road frontage is only 13-metres which is 9-metres below the impending statutory height control.

· The proposal has a 4-storey street wall presentation along Botany Road, which is significantly below the anticipated building height for the site.

· The proposed height allows for retention of solar access to the north-facing units to the south. Given the minor degree of separation from the common boundary of the southern neighbouring building compared to the overall separation distance, this further demonstrates the sympathetic nature of the height and siting of the proposal.

· The higher components of the development are substantially recessed behind the 4-storey street wall height whereby the 5lh and 6th storeys are setback 4-metres. This reduces the visual impact of the proposed height whilst the height also steps down to the southern neighbouring building.

· Although the height limit could be 6 storeys at Botany Road the proposal is only 4 storeys. This relates strongly to the scale and form of the heritage frontage. It also presents a far more successful design resolution to the setback portion of the building than has been achieved for the heritage site redevelopment. The setback of 4m allows the lower scale edge to be read as the streetscape scale, provides generous terrace areas to the units above the street frontage and allows a view line to be preserved for the apartments on the corner near Botany Road at the upper level.

· The 7th storey is setback 18 metres from the Botany Road street wall which ensures that the uppermost level will not be perceptible from the western side of Botany Rd whilst it would only be evident when viewed from a considerable distance.

· The 7th storey has been significantly reduced from a gross floor area of 257sqm to 176sqm whereby it now occupies only 3% of the total gross floor area of the development.

· The 7th storey has also been skillfully designed to be fragmented into 2 minor pop-up components. These components are also recessed from the perimeter of the building below with deep roof overhangs which further reduce the perception of the upper level portions. The divided form of the 7th storey will also markedly reduce the perception of the upper portions when viewed from Jones Lane as the separation is provided in line with Jones Lane whereby the pop-ups occur either side of the lane.

• The raked form of the 7lh level when viewed from the south ensures that the visual impact of the uppermost level is minimized.

FSR

1. Insofar as the FSR of the amended proposal has been reduced from 2.21:1 to 2.09:1, this now represents a variation of 4.5% from the draft LEP FSR standard. Mr Betros supports this variation in the circumstances because:

• The imminence and certainty of the Draft LEP standard of 2:1 places greater reliance on this FSR rather than the existing 1.5:1 control under DCP 1997- Urban Design. This is confirmed by numerous approvals whereby greater weight has been afforded to the Draft LEP controls.
• The proposed FSR is within a building envelope which is compliant with the statutory height limit and well within the applicable setback controls. The proposal is therefore considered to reflect a development which is consistent with the desired future character. The numeric FSR within such envelope is therefore considered to be a secondary consideration.
• The distribution of FSR on this site has been provided in an appropriate and sympathetic manner whereby the presentation to Botany Rd achieves a suitable relationship with the heritage listed facade to the south whilst also having an appropriate relationship with the existing and any likely future development on the northern neighbouring site.
• Furthermore, the recessed nature of the upper levels minimises the appearance of the built form behind the street-wall. The fragmented nature and substantial setback of the uppermost level also minimise the perception of the uppermost pop-ups.
• The substantial northern and southern side setbacks which significantly outperform that required further demonstrates that the built form and numeric FSR within is provided in a reasonable building envelope.
• The lack of impact to surrounding properties in regard to overshadowing, visual/acoustic privacy and reasonable view sharing outcomes further demonstrate that the proposed building form and associated FSR is appropriate for this site.
• The proposed FSR/building footprint also allows for a significant deep soil component of 262sqm and an overall landscaped area of 616sqm which contribute to a high quality landscape outcome which will be not only appreciated from within the development, but also from the units to the south within 797-807 Botany Rd.
• The degree of the FSR variation is considered to be indiscernible given that a significant proportion of the FSR is concealed from the public domain whilst the fragmented building form, generous setbacks, contribution of landscaping and articulated built form also assist in justifying the minor variation.
• The provision of 40 car spaces is compliant with the current maximum controls within DCP 11 and the imminent controls within the Draft LEP. The site's proximity to bus services along Botany Road, Green Square and Mascot Railway Stations further support the proposed density on the subject site.
• The high internal performance of the built form further demonstrates that the proposed FSR is not an overdevelopment. The proposed unit layouts significantly outperform the rates anticipated by the Residential Flat Design Code in regard to solar access and cross ventilation whilst each unit also satisfies the minimum unit size and private open space requirements. These factors demonstrate that the proposal is of an appropriate density which will provide for a high degree of internal amenity to all apartments.
• The proposal provides for a significant streetscape improvement to Botany Road which includes an improved relationship with the heritage listed facade on the adjoining building whilst the proposed public domain plan, streetscape activation and interesting street facade contribute to a substantial public benefit which further justifies the minor FSR variation.

1. This conclusion is supported by Ms Morrish on the basis that:

• The massing works well for the site and does not contribute to any adverse amenity impacts. IT achieves excellent amenity for the apartments within the development as well as a strong relationship to the street.

• The minor non compliance is considered within the range of what is normally contemplated for variation to allow for the unique circumstance of different sites and the building exceeds required setbacks, separation distances and over much of the site is well under the allowable height controls.

1. Having considered the evidence, I am satisfied that it is reasonable to allow the minor variation to the FSR control in this case.

Internal amenity

1. This issue concerns the building designs ability to achieve a minimum 2.7m floor to ceiling height. The experts agree that this can be achieved in the circumstances on the following basis:

• The proposed sections demonstrate that the proposal will provide for 2.7m ceiling heights in the habitable rooms of the development, The limitation of the lift to service the penultimate level only ensures that the lift overrun will not protrude beyond the 22-metre height limit. Furthermore, the recessed nature of the development on the upper levels provides ample opportunity for services to be discreetly provided without reliance on utilising the rood of the uppermost level for the location of services.
• The sort of commercial space that is likely to work in this location and these units will be a home office or incubator type use. As such the servicing requirements are far less than would be required for a major commercial tenancy and therefore the normal allowance for residential uses would be suitable and reasonable.
• The 3m floor to floor is acceptable subject to the 2.7m floor to ceiling being delivered at construction and the services from the residential do not have to transfer horizontally0through the ground floor commercial space. The internal height of the commercial space should be a minimum of 3m.

Public interest

1. It is apparent that the residents from the adjoining development are concerned about the height of the proposed building and the consequential loss of view/outlook towards the city. Whilst loss of views was not listed as a contention by council, nevertheless the experts assessed it on the following basis:

The proposal has been amended where possible and reasonable to setback the building from the street facade to maintain views of the CBD from Unit 4.01, as shown above. The retention of CBD views from other units within the southern neighbouring development would require the removal of 3 levels of the proposal which is considered to be unreasonable, unnecessary and unviable.

It is reiterated that the affected views are across the side boundary of the subject property and are affected by a complying building envelope. Any view impacts are therefore considered to be contemplated by the controls. Despite the proposal thereby satisfying the Tenacity Consulting v Warringah Council Planning Principle for view sharing, the proposal has been amended to maintain CBD views from Unit 4.01. This represents a skilful design response which is also consistent with the application of the planning principle to the subject proposal...

Conclusion

1. Having considered the evidence, including the expert reports and undertaken a view, which involved a site inspection of the adjoining development to assess view impacts, I am now satisfied that this amended application merits conditional consent.

1. It is apparent that this site is situated within an area that is undergoing significant change and that development will result in a significant increase in density. This is to be achieved with higher buildings than the current controls permit.

1. In this regard, I am satisfied the new controls in the DLEP are imminent and certain, based on the parties' submissions and should be given determinative weight. On this basis there will most likely be other higher buildings that will in some ways block views towards the city skyline, particularly across side boundaries as in the current matter.

1. Notwithstanding this, I think the amendments have resulted in a marginal improvement on the view opportunities, based on the current situation. Accordingly; I rely on the agreed experts' opinion on this matter.

1. I also consider that the variable (in the order of 17 m) setbacks between the two buildings exceeds the accepted RFDC controls and therefore a reasonable level of privacy should be established, consistent with the proposed density of development in this neighbourhood.

1. In summary then, I rely on the experts' agreement that the amended proposal satisfactorily addresses the contentions and merits conditional consent.

Court Orders

1. The Court orders that:

(1)   The appeal is allowed.

(2)   Development consent is granted to Development Application No D/2012/892 for the demolition of existing buildings and construction of a mixed use development at 791-795 Botany Road Rosebery subject to the conditions in Annexure A.

(3)   The exhibits may be returned except A, 2, 3, 4, 5.

R Hussey

Commissioner of the Court

Decision last updated: 14 December 2012