Bettar v Sydney City Council
[2014] NSWLEC 1106
•12 June 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Bettar v Sydney City Council [2014] NSWLEC 1106 Hearing dates: 11 June 2014 Decision date: 12 June 2014 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld
Catchwords: Consent Orders: residential flat building, objection to development standards Legislation Cited: Sydney Local Environmental Plan 2012; State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development; Environmental Planning and Assessment Act 1979 Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827 Texts Cited: Sydney Development Control Plan 2012; Category: Principal judgment Parties: Paul Bettar (Applicant)
Sydney City Council (Respondent)Representation: Ms S Duggan SC (Applicant)
Mr C McEwen SC (Respondent)
Mr V Conomos, Conomos Legal (Applicant)
Mr A Simpson, Sydney City Council (Respondent)
File Number(s): 10815 of 2013
Judgment
Mr Bettar lodged Development Application D/2013/1203 with Sydney City Council on 19 August 2013 seeking consent to demolish existing buildings and construct a 3 - 7 storey residential flat building with basement carpark, removal of 14 trees and landscaping works. The council had not determined the application within the prescribed period so this appeal was lodged against the deemed refusal of consent.
The issues between the parties have been resolved and they are seeking consent orders from the Court. Objectors to the development were notified of the amended plans and provided an opportunity to make further submissions to the Court. One email response was added to the council's Bundle of Documents, Exhibit 1, which stated that, on review of the changes and draft conditions, the remaining design issues were addressed however the loss of trees was regretted as was the need to elevate the ground level of the development. That floor level is a response to local flooding issues.
The site
The site is known as 39-47 Mentmore Avenue, Rosebery and is located on the north-western corner of the Queen Street and Mentmore Avenue intersection. It has an area of 3,523sqm with frontages of 34.215m and 89.45m to each road respectively.
A two storey commercial/light industrial building containing a number of tenancies stands on the site. Associated car parking is accessed off Mentmore Avenue. There are 22 trees within and surrounding the site.
The area comprises a mixture of commercial, light industrial and residential uses, with this northern section of Rosebery undergoing renewal as part of the greater Green Square redevelopment. Diagonally across from the subject site, to the south, marks the transition to lower density residential properties. Predominately, that area is characterised by detached single-storey dwellings on large single residential allotments.
Background and the proposal
The application, as originally lodged, sought consent to demolish the existing building and construct a 3 - 7 storey residential apartment building with basement parking for 57 cars. The appeal was lodged on 21 October 2013 and, in accordance with the usual practice of the Court, conciliation conferences were held in February and March 2014 before the Senior Commissioner. Whilst no agreement was reached during this process the applicant elected to revise the plans for the proposal and was granted leave to rely on those plans on 25 March 2014. It is those plans that are now before the Court.
The plans provide for the demolition of the existing building, removal of 14 trees, construction of a 4 - 6 storey residential flat building with basement parking for 57 cars, 2 service vehicles, storage areas and bicycle parking and landscaping works. The building would consist of 71 units with 1,043sqm of communal space at ground floor level. Vehicle access to the basement is off Queen Street.
The Gross Floor Area of the proposed development is 5,727sqm with a Floor Space Ratio (FSR) of 1.63:1. The development has a proposed height of up to 18.1m with a maximum of 6 storeys. The proposed unit mix comprises 6 x studio units, 29 x 1 bedroom units, 29 x 2 bedroom units and 7 x 3 bedroom units.
The planning controls
The site is zoned B4 Mixed Use under Sydney Local Environmental Plan 2012 (LEP). A residential flat building is permitted with consent in that zone. The objectives of the B4 Zone are:
- To provide a mixture of compatible land uses.
- To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
- To ensure uses support the viability of centres.
Development standards, which set a maximum building height of 15m and FSR of 1:1, apply to the site. The FSR may be increased by an additional 0.5:1 subject to the provision of community infrastructure (clause 6.14) but only if the development of the land includes development for the purposes of recreation areas, recreation facilities (indoor), recreation facilities (outdoor), public roads, drainage or flood mitigation works.
Clauses 4.3(1) and 4.4(1) of the LEP list the objectives of the development standards as follows:
4.3 Height of buildings
(1) The objectives of this clause are as follows:
(a) to ensure the height of development is appropriate to the condition of the site and its context,
(b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas,
(c) to promote the sharing of views,
(d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas,
(e) in respect of Green Square:
(i) to ensure the amenity of the public domain by restricting taller buildings to only part of a site, and
(ii) to ensure the built form contributes to the physical definition of the street network and public spaces.
4.4 Floor space ratio
(1) The objectives of this clause are as follows:
(a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future,
(b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,
(c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,
(d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.
Clause 4.6 of the LEP provides for exceptions to the development standards.
Sydney Development Control Plan 2012 (DCP) applies and under the provisions of that plan, a maximum height in storeys of 4 applies.
The applicant has lodged a written request, pursuant to clause 4.6 of the LEP, that seeks to justify the contravention of the development standards by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.
That request (Exhibit B) has been assessed by the council and considered to be well founded. In addition, the applicant has provided a draft Voluntary Planning Agreement to the value of $1,046,900 however, that does not purport to satisfy clause 6.14 of the LEP. These funds are to be used by the council for the provision of public domain works.
State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP65) applies to the application. According to the evidence, the amended proposal is compliant with the relevant minimum provisions of that plan in regard to solar access, ventilation, unit sizes and private and communal open space.
The issues
The contentions are outlined in the Amended Statement of Facts and Contentions filed with the Court on 17 April 2014. These are summarised as excessive height, bulk and scale; residential amenity; accessibility; design excellence; site planning and public domain interface; tree removal; flooding and the public interest. In addition, the council has identified the need for the applicant to provide a landscape plan and BASIX Certificate to allow consent to be granted. That certificate was tendered as Exhibit D.
The evidence
Planning and urban design experts for the applicant and council prepared a joint report (Exhibit 3). As a result of the joint conferencing process, the experts agreed to a series of amendments that could be made to the planning and design of the development that would address the council's contentions. Conditions of consent have been prepared that reflect those recommendations, in particular condition 1 of Schedule 1A.
The written request and the joint report have specific regard to the location of the site and development that has either been approved and completed or approved and yet to be constructed in its vicinity. Of particular relevance to the case is a master planned development opposite the site, referred to in the evidence as the Otto development. Site planning for that block, which is bound by Mentmore Avenue, Queen Street, Rothschild Avenue and Cressy Street, provides for buildings of varying height and, importantly has resulted in variation to both the height and FSR development standards. A park that was proposed opposite the site on land with a 3m height control has now been relocated to the northern end of the block and development up to a height of 22.45m approved. The building on the Otto site at the corner of Mentmore Avenue and Queen Street has been approved with a height of 17m with higher buildings toward the north.
The development proposes to step building height up from the corner of Mentmore Avenue and Queen Street with the building at the corner having a height of 13m with steps of 15.7m and 18.1m at the northern end of the site. That portion of the building is adjacent to a building approved at 20.1m on the adjoining land. Similarly, the building is lower across its Queen Street frontage than the adjoining development to the west by 2m. Figure 4 in Exhibit B demonstrates the relationship of building height within the vicinity of the site.
Conclusion and findings
Of particular relevance to determination of the application is the request to vary the development standards for height and FSR. The context of the site is an important factor in that consideration. The evidence is that the design of the development is appropriate to that context and I accept that finding, having regard to the height, bulk and scale now proposed and is satisfied the objectives are met.
In relation to the request to vary the development standards for height and FSR I must consider the objectives of those standards and the objectives of the B4 Zone. I am satisfied that the height of the development is appropriate to the condition of the site and its context, has no adverse impacts in relation to views, ensures appropriate height transitions from the Green Square Town Centre to adjoining areas and ensures the amenity of the public domain by restricting taller buildings to only part of a site and that the built form contributes to the physical definition of the street network and public spaces. The FSR reflects the building height and contributes floor space towards the urban renewal of the Green Square area, and minimises adverse impacts on the amenity of the locality. The council supports the density of development proposed.
I am also satisfied that the issues raised in that request have regard to the principles outlined by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827. For that reason, the objection to those development standards should be upheld.
The proposal is lawful and complies with the relevant provisions of the LEP, DCP, SEPP and those relevant matters under s79C of the Environmental Planning and Assessment Act 1979.
There being no reason why Consent Orders should not be made, by consent, the Orders of the Court are:
(1) The Exceptions to development standards for building height and FSR are upheld.
(2) The appeal is upheld.
(3) Development application D/2013/1203 for the demolition of the existing building, excavation and construction of a residential flat building and landscaping at Nos. 39 - 47 Mentmore Avenue, Rosebery, is approved subject to the conditions of consent in Annexure A.
(4) The exhibits, other than exhibits C and 2, can be returned.
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Sue Morris
Commissioner of the Court
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Decision last updated: 12 June 2014
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