Botany Bay Apartments Pty Ltd v Council of the City of Sydney

[2016] NSWLEC 1143

Land and Environment Court

New South Wales

Medium Neutral Citation:

Botany Bay Apartments Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1143

Hearing dates:

16 March 2016

Date of orders:

20 April 2016

Decision date:

20 April 2016

Jurisdiction:

Class 1

Before:

Morris C

Decision:

Appeal dismissed

Catchwords:

DEVELOPMENT APPLICATION: calculation of site area and floor space ratio; bulk, scale, height, building separation, impact on adjoining properties

Legislation Cited:

Sydney Local Environmental Plan 2012; Environmental Planning and Assessment Act 1979; State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development; State Environmental Planning Policy No 55 – Remediation of Land; State Environmental Planning Policy (Infrastructure) 2007; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Texts Cited:

Sydney Development Control Plan 2012; Residential Flat Design Code

Category:

Principal judgment

Parties:

Botany Bay Apartments Pty Ltd (Applicant)

  Council of the City of Sydney (Respondent)

Representation:

Counsel:
Ms S Duggan SC (Applicant)
Mr A Pickles SC (Respondent)

 

Solicitors:
Mr M Ayache
OneGroup Legal Pty Limited (Applicant)

  Ms M Flick
Council of the City of Sydney (Respondent)

File Number(s):

10745 of 2015

Judgment

1. Botany Bay Apartments Pty Limited (Botany Bay) own property known as 71 - 91 Euston Road Alexandria and sought, through the lodgement of development application D/2014/1992, consent for the construction of a four storey, mixed use building accommodating 49 residential apartments and one commercial premises at ground floor level and the excavation for and construction of a two level basement. Sydney City Council refused consent on 29 June 2015 and Botany Bay is appealing that decision.

2. The main contentions in the case relate to the calculation of floor space ratio and site area, the resultant bulk and scale of the development, building height and separation, residential amenity, active street frontages and the impact on adjoining development.

The site and its context

3. The site comprises four adjoining allotment on the north-western corner of Euston Road and Maddox Street with frontage on its western side to Euston Lane. The combined area of the lots is 1454 m² and the frontage to Euston Road 47.475 m.

4. The site contains a single storey masonry warehouse building fronting Euston Lane and ancillary offices and an awning that are constructed to the Euston Road frontage. An uncovered hardstand area occupies the remainder of the site at the southern corner. The site is currently used as a tyre repair and replacement business.

5. Four storey residential flat buildings are located to the north east of the site. Commercial and light industrial uses are located on the opposite side of Euston Road with four storey and four and five storey residential flat buildings located on the opposite side of Euston Lane and Maddox Street. Further to the west of the site is low density housing fronting Lawrence Street.

6. Sydney Park is approximately 300m to the south west of the site.

Background and the proposal

7. The development application was lodged on 22 December 2014 and ultimately refused by the Council on 29 June 2015.

8. The reasons for refusal reflect the contentions in the case and are summarised as follows:

• non-compliance with the aims of Sydney Local Environmental Plan 2012 (LEP);

• non-compliance with the maximum floor space ratio (FSR) permitted under the LEP;

• non-compliance with the maximum building height permitted under the LEP and setback provisions contained in Sydney Development Control Plan 2012 (DCP) and inconsistencies with that DCP;

• failure to satisfy the design excellence requirements of the LEP;

• unsatisfactory amenity for intended occupants and surrounding properties;

• failure to positively address the street or minimise blank walls at ground level so the development does not contribute to the activity, safety, amenity and quality of the street and public domain;

• site is unsuitable for the proposed development due to acoustic criteria, flooding and street trees management;

• the development is not in the public interest and does not achieve the objects of the Environmental Planning and Assessment Act 1979 (EP&AAct).

9. The appeal was filed on 26 August 2016 and, following a conciliation conference, the applicant was granted leave to rely on amended plans on 19 January 2016. The plans before the Court now propose the construction of a four storey mixed use building accommodating 42 residential apartments, 2 commercial premises at ground floor level and a two level basement providing parking for 44 cars, 4 motor cycles and 51 bicycles.

The planning controls

10. The main portion of the site is zoned B4 -Mixed Use with an 8m wide strip across the Euston Road frontage zoned SP2 - Infrastructure for the purpose of future road widening.

11. Clause 1.2 of the LEP contains the aims of the plan with the following relevant to the contentions of the case:

(d) to encourage the economic growth of the City of Sydney by:

(i) providing for development at densities that permit employment to increase, and

(ii) retaining and enhancing land used for employment purposes that are significant for the Sydney region,

(e) to encourage the growth and diversity of the residential population of the City of Sydney by providing for a range of appropriately located housing, including affordable housing,

(f) to enable a range of services and infrastructure that meets the needs of residents, workers and visitors,

(g) to ensure that the pattern of land use and density in the City of Sydney reflects the existing and future capacity of the transport network and facilitates walking, cycling and the use of public transport,

(h) to enhance the amenity and quality of life of local communities,

(i) to provide for a range of existing and future mixed-use centres and to promote the economic strength of those centres,

(j) to achieve a high quality urban form by ensuring that new development exhibits design excellence and reflects the existing or desired future character of particular localities,

12. Clause 2.3(2) requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the 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.

13. The objectives of the SP2 zone are:

• To provide for infrastructure and related uses.

• To prevent development that is not compatible with or that may detract from the provision of infrastructure.

14. Part 4 of the LEP contains Principal development standards with clause 4.3 Height of buildings, 4.4 Floor space ratio, 4.5 Calculation of floor space ratio and site area and 4.6 Exceptions to development standards relevant to the contentions in the case. According to the LEP maps, the maximum building height that applies to the site, including the land zoned SP2 is 15m and maximum FSR is 2.5:1.

15. Clause 5.1 nominates the Roads and Maritime Services as the relevant acquisition authority for the SP2 zoned land. Clause 5.1 A relates to that land and is in the following form:

5.1A Development on land intended to be acquired for public purposes

(1) The objective of this clause is to limit development on certain land intended to be acquired for a public purpose.

(2) This clause applies to land shown on the Land Reservation Acquisition Map that is specified in Column 1 of the Table to this clause and that has not been acquired by the relevant authority of the State specified for the land in clause 5.1.

(3) Development consent must not be granted to any development on land to which this clause applies other than development for a purpose specified opposite that land in Column 2 of that Table.

Column 1                                                                         Column 2

Land                                                                                 Development

Zone SP2 Infrastructure and marked “Classified road”   Earthworks, roads

16. Clause 5.3 Development near zone boundaries is in the following form:

(1) The objective of this clause is to provide flexibility where the investigation of a site and its surroundings reveals that a use allowed on the other side of a zone boundary would enable a more logical and appropriate development of the site and be compatible with the planning objectives and land uses for the adjoining zone.

(2) This clause applies to so much of any land that is within the relevant distance of a boundary between any 2 zones. The relevant distance is 6 metres from any land in Zone SP1 Special Activities or Zone SP2 Infrastructure.

(3) This clause does not apply to:

(a) land in Zone RE1 Public Recreation, Zone E1 National Parks and Nature Reserves, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone W1 Natural Waterways, or

(b) land within the coastal zone, or

(c) land proposed to be developed for the purpose of sex services or restricted premises.

Note. When this plan was made it did not include land in Zone E1 National Parks and Nature Reserves, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone W1 Natural Waterways.

(4) Despite the provisions of this Plan relating to the purposes for which development may be carried out, development consent may be granted to development of land to which this clause applies for any purpose that may be carried out in the adjoining zone, but only if the consent authority is satisfied that:

(a) the development is not inconsistent with the objectives for development in both zones, and

(b) the carrying out of the development is desirable due to compatible land use planning, infrastructure capacity and other planning principles relating to the efficient and timely development of land.

(5) This clause does not prescribe a development standard that may be varied under this Plan.

17. The applicant relies on the provisions of clause 5.3 to permit the inclusion of the SP2 zoned land within the calculation of FSR. This matter is discussed in detail later in this judgment.

18. Clause 6.21 requires the consent authority to consider whether a proposed development exhibits design excellence and form an opinion that it does before consent can be granted and lists the number of matters relevant to that consideration.

19. The DCP includes a number of locality statements which guide the desired future character of individual localities. The site is within the Euston Road and McEvoy Street locality with the following description extracted from the DCP:

This locality is bounded by Euston Road and McEvoy Street, Fountain, Lawrence and Huntley Streets and consists of two distinct localities. The area north of Sydney Park Road is an area in transition from industrial/light commercial to mixed use. The area to the south of Sydney Park Road is dominated on the western edge by Sydney Park with three isolated sites with commercial and industrial uses and on the eastern edge by “big box” industrial development.

Euston Road and McEvoy Street are to be revitalised. Improved presentation of buildings, a greater mix of uses, and better functionality of the street and path network for pedestrians are to enliven this neighbourhood. North of Sydney Park Road the focus is on a mix of retail, commercial, community and residential uses, while south of Sydney Park Road the existing industrial character of the area will continue.

Principles

(a) Development must achieve and satisfy the outcomes expressed in the

character statement and supporting principles.

(b) Provide active edges to buildings which adjoin Sydney Park for better

passive surveillance and also improved visual appearance to the park.

(c) Design buildings to align to and address the street at ground level.

(d) Encourage modulation and articulation of the horizontal and vertical

proportions of facades including change in materials to reduce bulk and

scale, and provide good visual amenity.

(e) Enable higher built form north of Sydney Park but constrain the street wall

height to three storeys to maintain a pedestrian scale.

(f) Encourage the progressive conversion of existing industrial/commercial

uses at the northern end of Euston Road/ McEvoy Street into mixed use

development with ground floor retail uses and commercial and residential

uses above.

(g) Strengthen bike links to Sydney Park and the Alexandra Canal area.

20. Clause 4.2.5.3 applies to development on busy roads and active frontages and applies to the site as, according to data in Exhibit 6, Euston Road carries in excess of 20,000 vehicles per day (23, 460 vehicles in 2014) and the use includes residential use and mixed use buildings. Euston Road will, on completion of the WestConnex road project, carry an average weekday traffic volume of 58,390 vehicles.

21. The objectives of the clause are:

(a) Mitigate the impacts of noise for sensitive uses located along busy road

corridors.

(b) Ensure visual privacy for residential dwellings when viewed from the

adjacent public domain.

(c) Ensure acoustic amenity for sensitive uses by attenuating noise from

external sources.

(d) Ensure reasonable internal daylight levels within sensitive uses.

22. Other relevant DCP provisions relevant to the contentions are contained in clauses 4.2.3.6 Deep soil (10% of site area minimum requirement); 4.2.3.7 Private open space (minimum 25sqm for ground level dwellings and 10sqm for upper level units); 4.2.3.8 Common open space (25% of site area); 4.2.3.12 Flexible housing and dwelling mix (defines range and number of dwelling sizes).

23. State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP65) and the associated Residential Flat Design Code (RFDC) are relevant considerations due to the date the application was lodged with the council.

24. State Environmental Planning Policy No 55 – Remediation of Land (SEPP55); State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 are also relevant to determination of the application.

The evidence

25. The hearing commenced on site with evidence heard from an objector to the proposal. The issues raised by that objector related to the impacts of the development on the enjoyment of their private open space and the height bulk and scale of the development. The view included observation of the objector’s private open space areas within her unit which adjoins the site.

26. To address the council’s contention relating to the need to provide active street frontages to the public domain, the applicant tendered sketch plans and a draft condition reflecting the changes shown on those plans (Exhibit C) that convert proposed dwellings 20 and 21 to commercial floor space with consequential increases to floor to ceiling heights in those areas. The council agreed that these plans were satisfactory provided the parapet does not exceed the 15m height control.

27. Expert town planning evidence was heard from Mr S Barwick for the applicant and Mr A McKeown for the council with Mr J Cooke providing urban design evidence for the council. All experts co-authored the Joint Report, Exhibit 7 with Mr McKeown and Mr Cooke also providing individual statements of evidence (Exhibits 4 and 5 respectively).

28. All experts agree that the proposed landscaped treatment of the area forward of the building along the Euston Road frontage would not prevent or hinder future road works being undertaken should they be required to be implemented.

29. They disagree whether the area that is zoned SP2 should be included in the site area when calculating the FSR of the development.

30. Clause 4.5 of the LEP is in the following form:

4.5 Calculation of floor space ratio and site area

(1) Objectives

The objectives of this clause are as follows:

(a) to define floor space ratio,

(b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to:

(i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and

(ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and

(iii) require community land and public places to be dealt with separately.

(2) Definition of “floor space ratio”

The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.

(3) Site area

In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be:

(a) if the proposed development is to be carried out on only one lot, the area of that lot, or

(b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.

In addition, subclauses (4)–(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development.

(4) Exclusions from site area

The following land must be excluded from the site area:

(a) land on which the proposed development is prohibited, whether under this Plan or any other law,

(b) community land or a public place (except as provided by subclause (7)).

31. The difference between the experts is that the council says the land zoned SP2 only permits roads and earthworks with consent and therefore the proposed development would not be permissible in that zone. The applicant argues that the provisions of subclauses 5.3(2) and (4) of the LEP allow the development on 6m of the SP2 zoned land adjoining the zone boundary with the B4 zone. For that reason, it is the applicant’s position that the 6m wide strip of land zoned SP2 can be used for a purpose that is permissible in the B4 zone and therefore the use of the land as a mixed use development is permitted with consent. This issue is discussed in detail in my findings as, in the absence of the Court being satisfied that a written objection to the FSR development standard should be upheld, should I find in favour of the council’s interpretation of the provisions, consent cannot be granted.

32. The total area of the land to which the application relates is 1,454sqm. The council says the full 8m width of the SP2 zone would be excluded for the purposes of calculating site area and the consequential floor space ratio of the development. The applicant says that only 2m of the SP2 zone is excluded from the calculation of site area as the provisions of clause 5.3(2) provide for including the 6m strip that adjoins the boundary with the B4 zone. It calculates the site area as 1359.3sqm which would permit a maximum FSR of 3397.6sqm. The proposed gross floor area (GFA) of the development is 3,267sqm and, applying the applicant’s calculations would be less than the maximum permitted.

33. Applying the council’s calculations, the site area would be 1074.2sqm and the FSR is 3.04:1. Mr Barwick says that the amended plans provide for a GFA that is 254sqm less than permitted for the site area that accords to the applicant’s interpretation of that area. The applicant has prepared a written objection to the FSR control in the event that the Court finds the council’s interpretation of the site area definition is correct and the council does not support that objection.

34. In regard to the bulk and scale of the building, Mr Cooke says the building is too large to the rear lane and encroaches into the rear setback. The proposed rear setback is inconsistent with neighbouring development along Euston Lane and this results in poor amenity for the proposed apartments and neighbouring dwellings.

31. Mr McKeown, whilst not supporting the applicant’s written objection to the FSR development standard, says that the development proposes an unacceptable built form and land use intensity in the context of the locality, noting the proposed rear setback is inconsistent with neighbouring development at Euston Lane with significant impacts on the rear lane streetscape. This comment particularly relates to that section of the proposed building that is cantilevered above the driveway to the basement and unit 19 and the associated terrace and landscaped area.

32. Mr Barwick disagrees and says the clause 4.6 objection is well founded with the development being of a height, bulk and scale that is an appropriate fit in the locality and is not larger or more domineering than surrounding and reasonably anticipated development.

33. In terms on building height, the experts agree that the amendments made to the plans to provide for the active frontage to Euston Road satisfactorily resolve the contention, noting that the application relies on a clause 4.6 objection to the building height development standard. The council did not press the contention that the written objection was not well founded and agreed that depending on the design, ventilated roofs to the upper level apartments would also be appropriate to improve natural ventilation to these units.

34. The provision of that ventilation partly addresses the council’s contention about the acoustic amenity of units fronting Euston Road. Whilst it is agreed that the provisions of Clause 102 of SEPP Infrastructure are not mandatory and that the location of non-residential uses at ground level across the Euston Road frontage improve the acoustic amenity of apartments, Mr McKeown remained concerned that the need to shut doors to achieve acoustic amenity was poor design however, not a reason on its own to refuse consent.

35. Mr Cooke remained concerned about the acoustic amenity of the units and, it was agreed during the hearing that despite the acoustic report recommending the use of acoustically attenuated vents, these were not noted on the plans. That is particularly due to the likely increased traffic volume along Euston Road noting that the provisions of clause 101(2)(c) of SEPP Infrastructure state that the consent authority must, where the development incorporates uses that are sensitive to traffic noise or vehicle emissions, not grant consent to development on land that has a frontage to a classified road unless it is satisfied that the development is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

36. Mr Barwick says that the development could, with the incorporation of the suggested mechanical ventilation recommended in the acoustic report, include attenuation and amelioration measures to reduce the road noise impacts as required under SEPP Infrastructure. It was agreed that consent conditions could reflect that requirement.

37. The experts agree that the proposal to construct the development to the full width at the southern end of the site is acceptable from a bulk and scale and streetscape character perspective. They also agree that there is a separation issue from proposed apartments 14, 15 and 18 over neighbouring balconies (facing Euston Lane 194-218 Lawrence Street).

38. Mr Barwick says that, whilst not numerically compliant with the separation distances specified in the RFDC, separation is appropriate and could be augmented with appropriate screening to the balconies of proposed dwellings 23, 30, 37 and potentially to the secondary windows of the south facing bedroom windows of dwellings 23, 30 and 37. The balcony of proposed dwelling 14 is oriented towards the generally blank wall and does not represent a privacy concern. A partial screening of the northern extent of the balcony to dwelling 18 and the southern extent of the proposed balcony to dwelling 15 would provide visual screening to the roof top open space at 194-218 Lawrence Street. He says the relationship of the spaces does not raise a concern in regard to acoustic privacy and the amenity of existing and proposed dwellings is appropriately managed and acceptable.

39. Mr McKeown says the building separation at the northern end of the proposal at Euston Lane is unsuitable for the streetscape because the proposed cantilevered apartments have significant detrimental impacts on the Euston Lane streetscape in relation to massing and bulk. Setbacks should be provided at the northern end of the site at Euston Lane to match adjoining development to the north with a depth of 4.8m. This measure would ensure a consistent rear setback alignment for the eastern side of Euston Lane, which is desirable in the context of streetscape and suitable built form. The cantilevered apartments at the northern end of the development prevent installation of appropriate landscape plantings. He also says the lack of separation between the cantilevered units and the development opposite the site is unacceptable.

40. Mr Cooke holds similar views and says the impacts from the lack of separation to the rear of Euston Lane include visual, acoustic and inappropriate massing and spaces between buildings. This leads to poor amenity for existing and new residents and inappropriate massing to the lane and space between the proposed building and the existing dwellings.

41. Mr Barwick says the treatment to Euston Lane provides a central large landscape planter to contribute to the green character of the lane treatment to the north, noting that the development immediately opposite the site provides no landscape contribution. The design has provided direct access to all ground level dwellings from the lane as well as via the main lobby off Euston Road. The inclusion of cantilevered elements is reflective of existing development in the area and contributes to the articulation of the presentation to the lane.

42. The experts agree that the proposed landscaped areas on the Euston Road frontage within the SP2 zone could be significantly reduced in size or removed should Euston Road be widened.

43. They agree that depending on calculation of site area, differing deep soil areas would be required to comply with the DCP provisions. Mr Barwick says the Part 02 Deep Soil Zones provisions of the DCP are more relevant to a development for a residential flat building in a residential zone rather than a development in a B4 Mixed Use Zone and the requirement should be considered on its merits.

44. Mr Cooke says the proposed large planter for the Euston Lane frontage does not comply with the DCP definition of deep soil due to the presence of the basement carpark below that area. The proposal does not optimise the extent of deep soil zones beyond the site by locating them contiguous with deep soil zones of adjacent sites. The lower basement carpark, the cantilevered section of the building facing Euston Lane and the building bulk are preventing this area from being deep soil as defined in the DCP. This is a missed opportunity for a continuous nature strip and rear lane streetscape and does not comply with better design practice in the RFDC Part 02.

45. Mr McKeown says deep soil areas have been provided within a 4.8 m wide landscaped setback at the rear of recently constructed development at 33 Euston road and to the rear of 51 - 63 Euston Road. The deep soil areas provide a high level of residential amenity for the occupants of the existing apartment on Euston Lane by providing a buffer from the laneway that provide visual privacy .the landscaped setbacks at the rear of residential and mixed use building to the north and south of the site at Euston Lane also comprise a desirable streetscape development with deep soil painting areas make a positive streetscape contribution by lessening visual bulk .the proposal to construct cantilevered apartments at the northern end of the Euston Lane frontage prevents the installation of similar landscape areas that the rear of the site that are open to the sky and that would be of significant benefit to the Euston Lane streetscape in relation to lessening visual bulk.

46. Mr Barwick says the planted areas to Euston Lane provide a green contribution to the streetscape that are not intended to be landscaped private open space for ground floor apartments. The landscaped plans provide an area of 25m² of soil depth that is approximately 2.8m deep and well capable of supporting vegetation that will provide a landscaped contribution to the streetscape. While the planter is not 10% of the site area the provision of the landscape opportunity is at or near the existing ground level; consolidated into a single area; does have a minimum dimension of 3m (2.5m x 10m) and does intersect with the soil profile below Euston Lane affording natural percolation of run-off into the sub surface levels. The design of the ground level dwellings fronting Euston Lane include private open spaces that are elevated above Lane level to provide privacy as well as incorporating privacy screen treatments. The spaces will be private and to not have to rely on landscaping to afford residential amenity. He says the landscaped treatment to the Lane is appropriate in the context of buildings terminating at the Maddox Street and Euston Lane intersection that provide a distinct urban edge. The landscape treatment of the Lane transition from the development to the south of the site to the hard edged development to the south of the site.

47. In regard to the size of private open spaces at ground level, numerical compliance with the provisions of the RFDC are not met however Mr Barwick says these spaces are functional and will serve as an amenity to the future residents of the dwellings. Mr McKeown says the private open spaces are insufficient, the recently constructed mixed use development at 33 Euston road and existing residential development at 51 to 63 Euston Road provide much larger private open spaces at ground floor level that significantly improve the amenity of the apartment and that are also beneficial for the streetscape by lessening visual bulk. The provision of suitable private open spaces is dependent on the provision of a suitable with setback and built form and is precluded by a proposal that exhibits excessive bulk to Euston Lane.

48. Mr Cooke says the private open space to the ground floor apartments is undersize and this results in reduced amenity to the apartments 1, 2 and 3 in particular.

49. The experts agree that the provision of shade structures is desirable in relation to the amenity of the proposed roof top common open space.

50. Mr Cooke says given the site constraints, the rooftop communal open space is generally encouraged, subject to acoustic and visual privacy of neighbours and the residents of the apartments that rely on clerestory windows for natural cross ventilation.

51. In relation to whether the development complied with the RFDC requirement of 60% of the units being naturally cross ventilated, the experts agreed that the plans could be amended to provide clerestory windows on the rooftop in the place of skylights if they are suitably located and address acoustic and privacy issues. This, combined with the council’s suggestion to increase the size of the northern, central void area would result in 62% of the units being naturally cross ventilated. The necessary amendments to the proposed windows and the provision of shade structures were discussed during the joint conferencing and hearing and it was agreed could be addressed as a condition of any consent that would be issued.

52. In regard to the RFDC provisions for solar access and the rule of thumb guideline that two hours of solar access to the private open space and living rooms should be achieved for 70% of the dwellings between 9 AM and 3 PM, the experts agree that this contention is resolved through a condition that would require that the deletion of awnings and screens to some of those dwellings that front Euston Lane.

53. The development does not contain the apartment mix sought by the provisions of Part 4.2.3.12 of the DCP. The dwelling mix is for four studio dwellings; 15 one bedroom dwellings and 23 two bedroom dwellings. Mr Barwick says while the dwelling mix does not include a three-bedroom dwelling the impacts are not such that refusal would be warranted.

54. Mr McKeown said the objective of the planning controls are sound in that they encourage a range of dwelling types within all residential development of more than 20 dwellings and that they provide a mix of dwellings to cater for the needs of the future resident population. The mixed use development on the site should provide accommodation for both smaller and larger households. In this regard, the proposal is unsatisfactory as it does not provide any three-bedroom apartments whilst providing in excess of 44% of single or studio apartments.

55. The plans propose to address the contention of the conflict between balconies of the proposed development (units 38 and 39) and the adjoining building to the north by the provision of 1.5m high frosted glass balustrades that limit the opportunity for downward views into the upper level private open space areas of the two adjacent units.

56. The experts agree that it is appropriate to remove screens and awnings across the Euston Road elevation to improve light and ventilation to the study and bedrooms of those units and that this should also be required as a condition of any consent granted (refer to Exhibit E).

57. The applicant had, at the end of the hearing, not satisfied the council that the site was suitable for the proposed use as required under the provisions of SEPP55. In addition, the threshold issue in clause 7.14 Acid Sulfate Soils that requires the preparation of an acid sulfate soils management plan had not been met.

58. Ms Duggan, for the applicant urged the Court to issue findings on the merits of the case and, if it found that it was appropriate on the merits, allow time for the necessary reporting and plan preparation to be undertaken. Mr Pickles, for the council, did not oppose this approach.

Conclusion and findings

63. At the conclusion of the hearing, apart from the threshold issues detailed at [60], the main differences between the parties were the siting, bulk and scale and streetscape impacts of the proposed development and whether satisfactory amenity was provided to residents of the development and adjacent developments.

64. Consideration of the bulk of the building is related to the proper calculation of the FSR of the proposal but also how it relates to Euston Lane in particular.

65. It is common ground that if the 6m wide strip of SP2 zoned land that adjoins the B4 zoned land is included in the calculation of site area the FSR of the development is compliant with the 2.5:1 FSR permitted under the provisions of clause 4.4 of the LEP. If it is not then the applicant must rely on a written objection to that development standard pursuant to the provisions of clause 4.6.

66. The applicant relies on clause 5.3 of the LEP and in particular subclauses (2) and (4). Ms Duggan submits that, provided the Court is satisfied that the development is not inconsistent with the objectives for development in both zones, and the carrying out of the development is desirable due to compatible land use planning, infrastructure capacity and other planning principles relating to the efficient and timely development of land, consent may be granted. That is because subclause (4) permits development of land for any purpose that may be carried out in the adjoining zone under certain circumstances. Because the 6m wide strip of land is within 6m of the boundary between the B4 and SP2 zones development for the purposes of mixed use development, a use permissible with consent in the B4 zone would also be permissible in the SP2 zone.

67. Ms Duggan submits the clause must be read as a whole. The objective of the clause is to provide flexibility where the investigation of a site and its surroundings reveals that a use allowed on the other side of a zone boundary would enable a more logical and appropriate development of the site and be compatible with the planning objectives and land uses for the adjoining zone. That provision is talking about any 2 zones and, in accordance with the provisions of subclause (2) a relevant distance of 6m is established. That distance would apply to land on either side of the zone boundary. Because of the matters that must be satisfied under subclause (4) the use of the word from does not limit the uses to those uses permitted in the SP2 zone only. This is further evidenced from the fact that roads are permitted with consent in all of the zones that apply under the LEP.

68. Mr Pickles submits that subclause (2) has the effect of limiting the application of clause 5.3 to land that is 6m from the zone boundary of the SP2 zoned land only and does not apply in any other circumstances and does not apply to land on either side of the zone boundary. That is, the clause applies to “any” land that is 6m from “any” land in the SP2 zone. The relevant distance is 6m from the SP1 or SP2 zone so the reference to any land is any land in any zone that abuts the SP1 and SP2 zone so it can only be 6m from the SP1 and SP2 zone. For these reasons he submits that the provision does not apply to the 6m wide strip of land adjacent to the zone boundary that is within the SP2 zone, only to the land that is within 6m of the zone boundary that is zoned B4 because that land is 6m (the relevant distance) from the land that is zoned SP2. Accordingly, the mixed use development would be prohibited in that 6m wide strip and therefore the land would not be included in the site area for the purpose of calculating FSR.

Findings

69. I accept the submissions of Mr Pickles that the provisions of clause 5.3(2) of the LEP only apply to land that is 6m from the zone boundary from the SP2 zoned land. It does not apply to land that is 6m from the B4 zoned land and for that to be the case, the clause would need to include reference to the B4 zone in that part of the clause that refers to the SP1 and SP2 zones.

70. I do not accept Ms Duggan’s submission that roads are permissible in all zones under the LEP so clause has no work to do as other uses are allowed in the SP2 zone depending on what the land is identified for on the land use map and those uses differ from the limited uses in clause 5.1A of the LEP. In the SP2 zone the following uses are permissible with consent:

Horticulture; Roads; Water storage facilities; Water treatment facilities; The purpose shown on the Land Zoning Map, including any development that is ordinarily incidental or ancillary to development for that purpose.

71. For these reasons, I find that the site area for the purpose of calculating FSR is 1074.2sqm and the FSR is 3.04:1 which exceeds the 2.5:1 maximum provided under clause 4.4 of the LEP. The applicant has lodged a written request which seeks to vary that development standard and, for consent to be granted, I would have to uphold that objection.

The clause 4.6 requests.

72. The applicant relies on requests to vary the development standards for height of buildings and FSR. This is a precondition to consent being granted as, if I am not satisfied that the provisions of the clause are met, consent cannot be granted.

73. Clause 4.6 is in the following form:

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

(b) the concurrence of the Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Secretary must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Secretary before granting concurrence……….

74. This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3) and the fourth, that 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. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.

Height of buildings

75. Mr Barwick is the author of the amended written request (Exhibit D) prepared in accordance with the provisions of clause 4.6(3) of the LEP that seeks to demonstrate that 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 document has been amended to take into account the changes made to the building height to increase the commercial floor area of the ground floor level of the building.

76. The maximum height of building permitted under the LEP is 15m and the proposed building has a height of 17.63m to the lift over runs or 2.63m above the development standard. The predominant parapet height is some 1.27m below the standard.

77. The matters raised in the request are summarised as follows:

• The development would comply if the lift and stair access to the roof top area was removed and shading structures were not provided for the communal open space;

• The removal of the rooftop communal open space would be a loss of amenity for residents of the development;

• The proposed building is a four storey building consistent with the desired building form reflected in the DCP provision for four storey buildings to be provided;

• The proposed communal open space is positioned to maximise setbacks from the building edges to avoid potential adverse amenity impacts upon surrounding development;

• The predominant height of the building readily complies with the numerical building height;

• Non-compliance with the standard does not contribute to adverse environmental impacts in terms of overshadowing, visual impacts or view loss;

• The proposed non-compliances are minor and do not contribute to a discernible increase in the overall bulk and height of the proposed building. In the case of the pergolas, these structures are well setback from the edge of the building and will not be visible;

• The non-compliance does not result in a scale of building that is out of character with the surrounding development as the parapet height is below the development standard;

• The variation of the development standard specifically facilitates the provision of roof top communal open space affording additional amenity for the future residents of the development. Augmenting the range of recreation amenity afforded the future residents is an appropriate environmental planning ground to justify the numerical variation of the building height control.

78. In terms of demonstrating consistency with the objectives of the zone and height of buildings development standard the following points were made:

• The height of the development is consistent with the height and scale of approved developments within the vicinity of the site. The predominant parapet height of 13.35m is substantially below the permitted height limits;

• The proposal fits in with the scale of the surrounds with a four level residential building along Euston Road immediately adjoining the site;

• The site is not a heritage item or located within a heritage conservation area. A Conservation area is located to the immediate north west of the site. The minor height non-compliances will not impact on existing height transitions between the site and this conservation area.

• The variation in height will not compromise the opportunity for view sharing from nearby or surrounding properties;

• The proposed variations in height will be largely indiscernible as they only relate to small parts of the overall building envelope. In this regard, the proposed variation to the height controls does not compromise the height transitions from Central Sydney to Green Square Town Centre.

• The site adjoins a residential flat building to the north and a residential and retail building to the west. The building, being predominantly residential is compatible with these immediate land uses and surrounding non-residential areas. The locality is transitioning to a largely residential precinct.

• Commercial/retail space is provided on the ground level. The locality will only support minor service retail provision. The proposed residential dwellings are well located to maximise public transport use and alternate travel methods such as cycling and walking.

• The proposed residential dwellings will support the vitality of local centres.

79. Having regard to the written request and evidence in the proceedings, particularly the council’s experts support of the building height, I am satisfied, in accordance with the provisions of clause 4.6(4) of the LEP that the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and 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.

80. There is no evidence that any matters of significance for State or regional environmental planning arise and, given the council’s support of the building height, in this case there is no public benefit in maintaining the development standard.

81. For these reasons, non-compliance with the development standard for building height would not be a reason to refuse consent.

Floor space ratio

82. Mr Barwick is also the author of the written request that seeks to justify variation of the FSR development standard. That written request was included in the Statement of Environmental Effects that accompanied the development application and was included in the council’s bundle of documents, Exhibit 3. It was also amended during the hearing and included in Exhibit D.

83. The matters raised in the request are summarised as follows:

• A development that complies with the 2.5:1 FSR based upon a site area of 1074.87 m² would require the deletion of 440 m² of floor area. This is equivalent to more than half of the upper level of the proposed building;

• A building reduced by this extent would be substantially out of character with the scale and nature of the relatively recently approved development to the north of the site and the scale and density of development anticipated in the locality;

• The immediate context of the site supports the building form and scale proposed;

• The resulting building is a four-storey building consistent with the anticipated building scale for the locality and the site in the DCP;

• The reduction in gross floor area anticipated would fail to maximise the efficient use of the available land in the locality well-suited to support mixed use development;

• Not utilising the provisions of clause 5.3(2) of the LEP to include the area of the site is zoned SP2 Infrastructure fails to recognise that the LEP allocates a FSR of 2.5:1 to this portion of the site;

• The acquisition authority of the land (the RMS) has not commenced acquisition proceedings or advised the land owner of an intention to do so;

• The design of the building is such that the development does not hinder the future prospect of the land being acquired for road widening purposes as the only proposed use of the land in the interim is for landscaping purposes;

• Not allowing the allocated FSR to utilise the potential to increase the future acquisition cost of the land to recognise the otherwise available development potential of the land making the provision of public infrastructure potential more expensive;

• It is fundamentally unreasonable for the development potential of a parcel of private land within a development entitlement to be recognised;

• The broad purpose of the objective is to ensure environmental amenity is preserved and ensure buildings are compatible. The LEP specifically allocates a FSR entitlement of 2.5:1 to the portion of the site identified for potential acquisition. This configuration recognises that the development potential of the land, in spite of its potential acquisition is available to the land owner. The approach to the development has been to "transfer” a portion of the development in yield from the SP2 zoned land in a manner that maintains the desired four-storey building scale identified for the locality;

• The underlying purpose of the standard would not fundamentally be thwarted, what would be thwarted is the recognition of and the ability to pursue development of the land consistent with the development potential in terms of FSR that has been attributed to the portion of the site zoned SP2 Infrastructure;

• If a 6m wide strip of the SP2 land is included in site area in accordance with clause 5.3(2) of the LEP, the development has a FSR of 2.3:1 and complies with the maximum permitted development standard. The numerical non-compliance therefore only arises if the area of the site is zoned for future potential road widening is excluded from the calculation of site area;

• The LEP is specifically formulated to include the provision of clause 5.3 relating to development near zone boundaries, with clause 5.3(2) specifically relating to land zoned SP2. This clause is included in the environmental planning instrument to provide scope for the development potential of land identified for potential acquisition to be recognised and to minimise the penalty to the landowner relating to the potential for part of the land to be acquired in the future;

• Utilising the development near zone boundaries provisions as proposed results in a building that is of a form, scale and nature anticipated for the locality;

• Minimisation of the penalty for future infrastructure on the land to the land owner allows for the development potential to be maximised and contributes to a potential reduced acquisition cost for the public authority in the future as the development as proposed has sought to utilise the underlying potential of all of the land. This positive contribution to the public good should the road widening be pursued is considered to be appropriate and sufficient environmental planning grounds to support the technical numerical non-compliance;

84. In regard to the objectives of the FSR development standard the following issues are raised:

• The development results in a complying development with a FSR of 2.3:1 if the development potential of the land is recognised consistent with the FSR map of the LEP. The development provides a mix of residential and commercial floor space to meet the expected demands for a planned future of the locality;

• The density of the proposed development, built form, scale and density is commensurate with the nature of similar development in the immediate locality. Car parking has been limited consistent with Council's policies and support for alternative transport modes, particularly bicycles is supported with the provision of extensive bicycle parking within the proposed building;

• The intensity of the proposed development is not beyond the capacity of the existing support infrastructure available in the immediate and broader locality. The development will contribute further to local infrastructure through upgrade of immediate surrounding public domain and through the payment of section 94 contributions;

• The DCP identifies the desired scale of development to be four storeys for the site and surrounding locality. The proposed development is consistent with the desired scale. Further the development provides active retail tenancies and interaction with the street frontage and has been demonstrated to have no adverse impact upon the solar access and amenity of surrounding development. The design has carefully considered the built form relationship with development to the immediate north and to the west along Euston Lane to ensure the potential privacy impacts are avoided and when necessary augmented with appropriate design devices such as privacy screens.

85. In terms of addressing the zone objectives, identical reasons were provided to those argued in the variation of the building height development standard.

86. Whilst, for the reasons given above in relation to the interpretation of clause 5.3 of the LEP, I do not accept that the SP2 zoned area is included for the purposes of calculating the FSR of the development, I do agree that it is a particular relevant environmental planning ground that would provide justification of a written request to vary the FSR controls that apply to a particular parcel of land such as this site.

87. Similarly, whilst I do not accept all of the reasons provided by Mr Barwick in his written request, I do consider that, in the circumstances of the case, the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and 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.

88. Whilst the threshold issues of the development standards are met, it is necessary to carry out an assessment of the application against those matters prescribed in Section 79C of the EP&AAct.

89. Having regard to the evidence, I am not satisfied that the design of the building as proposed is appropriate for the site. Despite finding that it may be appropriate to allow additional FSR on the site to take into account the SP2 zoned land, I accept the evidence of the council’s experts that the allocation of that floor space is not appropriate. Those reasons are clearly articulated in their individual statements of evidence, Exhibits 4 and 5.

90. That is particularly due to the allocation of floor space within the cantilevered portion of the building at the Euston Lane frontage and the proximity of balcony areas and the associated living spaces to adjoining development. The failure to provide adequate separation distances between these building elements is unsatisfactory and contributes to a bulk and scale that is out of character with adjacent developments. It also contributes to amenity issues including the need to provide privacy screens that reduce internal amenity that would otherwise not be required should appropriate building separation be achieved.

91. Euston Lane has an established streetscape as the result of recently constructed developments along the eastern frontage and that streetscape should be maintained without the intrusion of the cantilevered element.

92. These aspects of the development are fundamental design criteria that demonstrate the development is not suitable for the site or in the public interest. The development fails to meet the design quality principles articulated in SEPP65, in particular context, scale, built form amenity and aesthetics nor does it exhibit design excellence as required under clause 6.21 of the LEP. For these reasons, consent cannot be granted.

93. It is apparent that the majority of the remaining contentions could be resolved through the submission of additional information, detailing and reporting, it is not necessary for that to be undertaken as a redesign of the development is required and is outside the scope of the “amber light” approach sometimes considered appropriate by this Court.

94. The Orders of the Court are:

1. The appeal is dismissed.

2. D/2014/1992 for the construction of a four storey mixed use building accommodating 42 residential apartments, 2 commercial premises at ground floor level and a two level basement providing parking for 44 cars, 4 motor cycles and 51 bicycles at 71 - 91 Euston Road Alexandria is refused consent.

3. The exhibits, other than exhibits A and 1, are returned.

______________________

Sue Morris

Commissioner of the Court

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Decision last updated: 20 April 2016