Bishop v The Council of the City of Sydney

[2010] NSWLEC 1364

Land and Environment Court

of New South Wales

CITATION:	Bishop v The Council of the City of Sydney [2010] NSWLEC 1364
PARTIES:	APPLICANT Steven Bishop RESPONDENT The Council of the City of Sydney
FILE NUMBER(S):	10452 of 2010
CORAM:	Tuor C
KEY ISSUES:	DEVELOPMENT CONSENT :- amend mixed use development to provide additional apartments residential amenity increase in floor space ratio amenity of mid block link
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environment Planning Policy No. 65 Design Quality of Residential Flat Development South Sydney Local Environment Plan 1998
DATES OF HEARING:	08/12/10
DATE OF JUDGMENT:	31 December 2010
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan, SC instructed by Mr V Conomos, solicitor of Conomos Legal RESPONDENT Mr A Hawkes, solicitor of the Council of the City of Sydney

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

31 December 2010

10452 of 2010 Bishop -v- Council of the City of Sydney

JUDGMENT

1 Commissioner: This is an appeal against the deemed refusal by the Council of the City of Sydney (council) of an application under s96(2) of the Environmental Planning and Assessment Act 1979 to modify development consent (D/2006/1929) for a mixed use residential and commercial development at 222 Wyndham St, Alexandria (the site).

2 The s96 application (D/2006/1929/F) seeks to modify the consent to allow the provision of 9 additional apartments at the first floor level of the building addressing Botany Rd (known as Building B).

Site and its locality

3 The site is bordered by Wyndham Street to the west, McEvoy Street to the north, Botany Road to the east and Retreat Street to the south. It contains three recently constructed mixed use residential commercial buildings, including nine storey buildings along the McEvoy Street frontage (Building A) and the Botany Road frontage (Building B) and a four storey building along the Retreat Street frontage (Building C). The buildings enclose a courtyard which is accessed via a through site link from McEvoy Street to Retreat Street and a pedestrian connection under Building B from Botany Road (mid block link).

4 To the north of the site, across McEvoy Street, is a range of mixed use commercial showrooms and offices. The north east corner of the site adjoins the Iron Duke Hotel. To the south of the site are residential terraces, the Yiu Ming Society Temple and the Glenroy Hotel and its associated carpark. Across Botany Road, to the east of the site, are a McDonalds and other commercial buildings. To the west of the site, on the other side of Wyndham Street, are a service station and commercial building.

Planning Controls

5 The site is zoned 10(b) Mixed Uses “B” and Arterial Road Reservation 9(a) under South Sydney Local Environment Plan 1998 (LEP 1998). The proposal is permissible with consent.

6 The site is within Green Square and the provisions of Division 2 apply. These relevantly include cl 27C which provides:

1. The Council must not grant consent for development of any land within Green Square unless:

(a) there is a Masterplan adopted by the Council for the development site comprising that land or within which that land is situated; and

(b) the development is consistent with the Masterplan.

7 South Sydney Development Control Plan 1997 - Urban Design (DCP 1997) is also relevant. This includes General Environmental Design Criteria in Part E for floor space ratio (cl 2.2) and Energy efficient site layout and building design (cl 5.1). Part G of DCP 1997 includes provisions for Special Precinct 9 - Green Square.

8 State Environment Planning Policy No. 65 Design Quality of Residential Flat Development (SEPP 65) and the Residential Flat Design Code (RFDC) are also relevant.

Background and proposal

9 On 16 October 2002, South Sydney City Council granted deferred commencement (U02/00459) for a mixed use residential/commercial development and Masterplan on the site.

10 The deferred commencement required a planning agreement for public domain works, including a through site link and publicly accessible land. The planning agreement deed (Deed) was signed by the previous owner of the site and council on 7 August 2003 and the consent became operative (the Masterplan consent).

11 The Masterplan consent approved:

• a total gross floor area (GFA) of 10,360 sq m (floor space ratio of 2.5:1);
• non residential GFA of 1,777 sq m (retail and commercial uses) at ground and first floor levels;
• 122 residential apartments;
• 112 car parking spaces, 58 bicycle spaces and 2 car wash bays;
• Public domain improvements to an estimated value of $1,360,000;
• Subdivision for future road widening;

• Vehicle access from Retreat Street for the residential and commercial/visitor component and vehicle access from Wyndham Street for the loading dock and commercial component.

12 A number of section 96 applications have been approved to the Masterplan consent, including the reconfiguration of apartments and terraces.

13 Development application (D/2006/1929) was approved by Council on 8 March 2007 for amendments to the building design involving an additional basement car parking level, reconfiguration of parking areas, relocation of above ground retail floor space to basement level 1, reconfiguration of commercial/retail floor space on ground and first floor levels and modifications to the lift access (the development consent).

14 The development consent has subsequently been modified a number of times. These modifications included changes to the maximum approved gross floor area of the development equating to a floor space ratio (FSR) of 2.52:1; changes to the structure of retail areas, including the creation of a basement supermarket, and the reconfiguration of access arrangements to the basement car park and loading dock.

15 The current s96 application seeks to replace the first floor ‘void’ above the ground floor retail with 7 one bedroom units and 1 two bedroom unit. A one bedroom unit (B1.03) is also proposed above the mid block link which connects Botany Rd to the internal courtyard that was provided as part of the public domain works required by the Masterplan consent and the Deed.

16 All the proposed units have balconies facing east to Botany Rd, which are enclosed by opaque glazed louvres. Four units (B1.01, B1.02, B1.09 and B1.10) also have courtyards facing west. The units are accessed via an existing first floor terrace, which overlooks the interior communal courtyard of the development.

17 The total GFA of the units in 607.46 sq m, which equates to an FSR of 2.67:1.

Issues and evidence

18 The Court visited the site and heard evidence from two residents whose principle concerns relate to privacy and noise impacts from the increase in the number of units, additional demand by residents for facilities such as visitor parking and waste storage and the loss of commercial/retail space to service the residential use.

19 Mr C Shortt and Mr A Urzi, for the council and Mr R Stark and Mr N Dickson, for the applicant provided planning and urban design evidence respectively.

20 The main issues between the parties are whether:

i. the proposed units will provide acceptable amenity for the future occupants;
ii. the additional floor space which results in a reduction in the ceiling height of the mid block link is consistent with the Masterplan and the requirements of DCP 1997.
iii. the reduction in the ceiling height of the mid block link will impact on the amenity and usability of the connection.

Residential amenity

21 The key disagreement between planners can be summarised as Mr Shortt considers the constraints on the site, including the proximity of Botany Road, the first floor location of the units and their orientation, result in unacceptable amenity such that, on balance, the proposal is unsuitable for residential development. In particular, Mr Shortt states that none of the proposed units meet the ‘rule of thumb’ in the RFDC for two hours of solar access in mid winter. Further, the proximity of the units to Botany Road result in noise impact which can be mitigated by the enclosure of the balconies with glass louvres, however, this limits cross ventilation to the units.

22 Mr Shortt states that there is insufficient information to assess whether 70% of the units in the development as a whole meet the solar access requirements of the RFDC. In his opinion, it is unlikely that this would be achieved as, despite the transitional provisions in SEPP 65, the development consent was assessed only under the requirements of DCP 1997, which requires that 50% of the units achieve two hours solar access. He acknowledges that combining units B1.01 and B1.02 into one unit would improve its amenity but, in his opinion, it would still not achieve an acceptable level of amenity overall when considered together with the other units.

23 Mr Stark held the contrary opinion that despite sub optimal solar access, on balance, the units achieved acceptable amenity. They have a number of positive attributes including their size and layout, dual aspect and outlook to the communal open space and the street, proximity to public transport and other facilities and services. He considers that cross ventilation would be achieved and that the noise from Botany Road would be mitigated by the enclosure of the balconies. He states that the louvres give people the choice of the balcony being enclosed and shielded from the noise or open with cross ventilation. In addition, the units are setback further from Botany Road than those above and there is an awning between the units and Botany Road which reduces noise.

Findings

24 The planners agree that the units will provide sub optimal solar access and the proximity to Botany Road will further reduce their amenity. Adequate cross ventilation can be provided but will be reduced if the louvres are closed to limit noise impacts from the road. The question is whether these factors reduce the amenity of the units to such an extent that they are unsuitable for residential use.

25 I accept Mr Stark’s evidence that, on balance, the units will achieve an acceptable level of amenity given the constraints of the site. The size and layout of the units is reasonable, they are in close proximity to public transport, shops and other services. The balconies are large and off the living areas, they will receive some sun morning, although less than two hours. The louvres, the awning below and the setback of the units mitigate noise from Botany Road.

26 The applicant would accept a condition that combines units B1.01 and B1.02. This would increase the solar access to this unit by providing some afternoon sun. This combined unit would have a dual aspect with a balcony to the east to Botany Road and a courtyard to west to the rear and would provide acceptable amenity. I accept that units B1.01 and B1.02 should be combined and that the other units will receive adequate amenity and the application should not be refused on this basis alone.

Floor space ratio

27 Mr Shortt and Mr Stark agree that the proposal provides additional floor space that exceeds the FSR approved in the Masterplan consent and the maximum bonus floor space permissible under cl 2.2 of Part E of DCP 1997 (base 1.5:1 and maximum 2.5:1). They acknowledge that the FSR approved under the Masterplan above the base FSR required the provision of public domain works identified in the Deed. The Masterplan consent included floor space at first floor level as a commercial mezzanine, however, subsequent amendments removed this floor space from the mezzanine to the basement level, but the overall FSR remained unchanged. A subsequent amended resulted in an increase of 100sqm of floor area, which the experts agree is minor.

28 The planners disagree on whether the proposal is consistent with the Masterplan and the requirements of cl 27C(1)(b) of LEP 1998.

29 In Mr Shortt’s opinion, the infilling of the first floor is “double dipping”, substantially exceeds the maximum floor space and results in an overdevelopment of the site which is inconsistent with the Masterplan. In particular, it results in the lowering of the ceiling height in the mid block link and reduces the amenity of this connection which does not meet the performance criteria for FSR in cl 2.2 of Part E of DCP 1997 as it will impact on the streetscape by reducing the effectiveness of the only entrance to the development from Botany Road and result in a negative visual impact on the Botany Road frontage.

30 Mr Stark considers the proposal is not inconsistent with the Masterplan for reasons which include:

• the Masterplan originally envisaged floor space in the current location;
• the proposed development does not alter the bulk and scale of the building as articulated in the Masterplan
• other amendments have been approved without reference to their consistency with the Masterplan.

31 In Mr Stark’s opinion the increase in floor space, including the partial infilling of the mid block link, meets the objectives and performance criteria for FSR in cl 2.2 of Part E of DCP 1997 as the infill will be obscured by the existing awning in Botany Road and therefore does not result in an unacceptable visual impact.

32 In a further joint report filed on 14 December 2010, Mr Stark and Mr Shortt address the requirements of Part G of DCP 1997 for Green Square which provides a base FSR for the site of 1.5:1 and a maximum bonus of 1:1 to encourage the provision of material public benefits. It states:

The base FSR may be exceeded on sites, only when a development provides substantial public and environmental benefits such as:
……

· Any other works at the discretion of the Consent Authority.

33 In Mr Stark’s opinion substantial public benefits have been provided as part of the Masterplan consent. Additional public benefits can be provided in conjunction with the lowering of the ceiling height to improve the amenity of the mid block link.

34 Mr Shortt’s position is that the previous public domain improvements resulted from the bonus floor space approved under the Masterplan consent. As a further 607sqm of bonus floor space is sought under the s96 application, further public benefits are required under Part G of DCP 1997. In his opinion, the ceiling of the mid block connection should not be lowered and works to improve its amenity should be provided as a public benefit.

35 In the further joint report, the planners also agreed on the floor to ceiling heights in the proposed ground floor retail areas that would result from the infilling of the mezzanine, which range from 2.7m to 3.64m. They raised no issues about the reduction of the ceiling heights in these retail areas.

Findings

36 The increase in floor space through the infilling of the mid block link and the retail mezzanine to provide residential units further exceeds the maximum bonus FSR in Part E and Part G of DCP 1997. The FSR approved under the development consent, as modified, is 2.52:1 which would be increased by the proposal to 2.67:1.

37 Mr Shortt’s principle concern about the increase in FSR relates to the infilling of the mid block link. Both planers raised no concern about the infilling of the mezzanine level of the retail areas which will result in no material change to the bulk or external appearance of the building.

38 I accept Mr Shortt’s evidence that the infilling of the mid block link and the reduction in its ceiling height would reduce the amenity and effectiveness of the connection. The increase in FSR to provide unit B1.03 is therefore not justified given that this would exceed the maximum bonus FSR in DCP 1997, result in adverse impacts and is not consistent with the Masterplan.

39 No adverse impacts have been identified by the experts as a result of the increase in FSR resulting from the infilling of the retail areas. I therefore accept that this would be consistent with the Masterplan and meets the requirements of cl 27C(1)(b) of LEP 1998. The proposal meets the objectives for FSR in DCP 1997, provided that the requirements of Part G of DCP 1997 are addressed. I accept Mr Shortt’s opinion that the provision of additional bonus floor space would require additional public benefits. I have therefore imposed the following condition which Mr Stark and Mr Shortt agree would improve the amenity of the mid block link:

The ceiling of the link between Botany Road and the internal courtyard shall not be finished in raw concrete with exposed services, but shall have a finished ceiling that incorporates acoustic panelling. Drawings illustrating the details of the proposed ceiling finishes must be submitted to the satisfaction of Council prior to the issue of the relevant construction certificate.

Mid block link

40 The key disagreement between the urban designers is whether the proposed reduction in the ceiling height of the mid block link would adversely impact on its amenity and usefulness as a pedestrian connection from Botany Rd to the internal courtyard.

41 The urban designers agree that the Masterplan consent and the Deed required public works which include a through site link in a north south direction between McEvoy St and Retreat St, through a publicly accessible internal courtyard and a pedestrian mid block link from the courtyard to Botany St. They agree that the proposal will not remove the mid block link but the construction of unit B1.03 will result in the partial infilling of the double height reducing its height to 3.1 m at the eastern end and 2.7 m at the western end.

42 Mr Urzi states that the mid block link is one of the principle accesses to the development’s pedestrian network and the only access point along the 75 m Botany Road frontage. In his opinion, lowering the height is not consistent with the requirements for Green Square in DCP 1997 and does not represent “good urban design”.

43 Mr Dickson agrees that the mid block link provides a functional and useful connection to Botany Rd. The connection is wider than shown in the Deed and is direct so that it provides a visual connection to the courtyard from the street. He does not agree that it is as important an entry point as the north-south through site link. Mr Dickson does not agree that the connection will be diminished functionally by the lowered ceiling as:

· the line of sight is retained;

· the width is retained;

· the connection is already restricted by the upper terrace at the western end and by the awning at the eastern end.

44 Mr Dickson does not accept that the provisions for Green Square in Part G of DCP 1997 apply as the mid block link is a connection to a publicly accessible space rather than a through site link as defined in DCP 1997.

45 Mr Dickson considers the amenity of the mid block link would be improved by the provision of an acoustic ceiling, lighting and signage and that a minimum ceiling height of 2700 mm could be achieved. Mr Urzi agrees that these elements should be provided but that the amenity and legibility of the space as a public link would be reduced by the lower ceiling height.

46 The mid block link is not technically a through site link as defined under DCP 1997, nevertheless it provides an important connection from Botany Road into and through the site. Although not directly applicable, the requirements of cl 3.1.4 of Part G of DCP 1997 are an appropriate guide for the design of this space. These requirements include that a through site link:

j Be open and not pass under buildings (unless generous dimensions are provided – minimum height three storeys for entire length; maximum depth 18metres.

47 The mid block link is approved under the development consent as two storeys with a width of 4m and a length of 12m. I accept Mr Urzi’s evidence that a reduction in its height to one storey, even if a minimum ceiling height of 2.7m can be achieved, would reduce the amenity of the space and its attractiveness as mid block connection. The proposed height would be lower than the awning on Botany Road. It would provide an insignificant entry to the mid block connection and reduce the view to the courtyard beyond.

48 I accept Mr Dickson’s evidence that the amenity of the mid block link would be improved by the provision of an acoustic ceiling, lighting and signage but not that this would compensate for the lower ceiling height. There is not justification to approve Unit B1.03, which exceeds the permissible FSR and results in a reduction in the ceiling height and a consequent lessening of the amenity of the mid block link. Clearly a better urban outcome would be achieved by the retention of the ceiling height combined with the suggested improvements. Unit B1.03 is therefore deleted from the proposal and the proposed condition requiring improvements is included.

49 The orders of the Court are:

1. The appeal is upheld in part.
2. The application under s 96(2) of an application under s96(2) of the Environmental Planning and Assessment Act 1979 to modify development consent (D/2006/1929) for a mixed use residential and commercial development at 222 Wyndham St, Alexandria is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibits A, E, G and 5, are returned.

___________________

Annelise Tuor
Commissioner of the Court