Capital Developments Pty Ltd v Auburn City Council
[2013] NSWLEC 1040
•08 March 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Capital Developments Pty Ltd v Auburn City Council [2013] NSWLEC 1040 Hearing dates: 28 February & 1 March 2012 Decision date: 08 March 2013 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed
Catchwords: Development Application: infill affordable housing; whether the design of the development is compatible with the character of the local area; SEPP65; solar access; setbacks; streetscape Legislation Cited: Auburn Local Environmental Plan 2010;
Environmental Planning and Assessment Act 1979;
State Environmental Planning Policy (Affordable Rental Housing) 2009;
State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development;Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC191 Texts Cited: Auburn Development Control Plan 2010; Residential Flat Design Code Category: Principal judgment Parties: Capital Developments Pty Ltd (Applicant)
Auburn City Council (Respondent)Representation: Counsel
Mr M Staunton (Applicant)Mr I Hemmings (Respondent)
Mr T Flaherty
Solicitors
Mr A Whealy
Gadens Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 11169 of 2012
Judgment
Capital Developments obtained consent (DA-279/2003) from Auburn Council on 1 December 2004 for demolition of buildings and construction of a 4 storey building comprising 3 office tenancies at ground floor level, 3 storeys of residential units above with basement carpark and strata subdivision of the building. That consent applied to land known as 22 Northumberland Road, Auburn and has been modified on a number of occasions and has commenced for the purposes of Section 95(4) of the Environmental Planning and Assessment Act 1979 (EPA Act).
Capital lodged DA-29/2012 with the council on 2 February 2012 seeking consent for alterations and additions to the mixed use building approved under the consent to DA-279/2003 to include three additional floors under State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH), inclusion of an additional basement parking level and strata subdivision of the additional building works. The council refused consent and Capital is appealing that decision.
Background and the proposal
DA-279/2003 (original consent) authorised the construction of a mixed use building which, as modified, provides for demolition of existing structures, construction of a 4 storey mixed use building comprising 2 office tenancies at ground floor level and 3 storeys of residential units above containing 12 x 2 bedroom units with basement parking for 17 vehicles and a loading bay. Strata subdivision was also authorised.
The demolition works have been carried out, excavation works and construction of perimeter retaining walls has been undertaken.
Capitol lodged DA29-2012 (the current application) seeking approval to carry out alterations and additions to the building approved under the original consent. The additional works proposed in the current application are summarised as follows:
- 3 additional storeys containing 10 x 2 bedroom units;
- an additional half level of basement carparking for 8 vehicles;
- reconfiguration of the approved basement level to accommodate 14 spaces (inclusive of 3 accessible parking spaces) and a loading area resulting in a total of 22 parking spaces and 1 loading area being provided for the development;
- alterations to the ground floor access and driveway access to facilitate the changes to the basement;
- alterations to the floor plans of Units 1 to 12 which are located on Levels 1 to 3;
- use of Units 1 to 12 as affordable rental housing;
- conversion of the rear commercial floor space into an additional unit including provision for home/office usage.
During the hearing, the applicant advised that it would change the units proposed to be the affordable units to those 10 units that are to be added to the approved building, thereby reducing the number of such units from 12 to 10.
If consent is granted, the current application would provide for a total of 23 x 2 bedroom units, of which one (unit 23) is proposed to be a live/work unit and 3 would be adaptable units. 21 resident parking spaces, one accessible commercial parking space and one loading bay are provided on two basement levels accessed from a ramp off Northumberland Road.
Possible changes to parking allocations are discussed later in this judgment. A lift provides access to all floors of the building and private open space for each unit is in the form of a balcony with the exception of unit 23 which would have access to a terrace area across the rear portion of the site. A rooftop terrace is proposed to address the common open space needs of residents and is located at the eastern end of the building on the same level as units 21 and 22.
The current application proposes a seven storey building above basement carpark. The first four storeys and the balcony to the 5th storey are built to the street boundary, the units on the 5th and 6th storeys are setback between approximately 1.8m and 3.5m (scaled) with the balcony to the 6th storey set in approximately 500mm. The top floor comprises the roof terrace above the units below with the building structure setback approximately 13.5m.
The ground floor is built to the side boundaries with a rear setback of approximately 6.6m (wall) and 4.2m (lower roof). The remainder of the building would be setback 10m from the rear boundary and built to the side boundaries with the exception of light wells. Those light wells correspond with those of the adjoining property to the north and vary in width from approximately 800mm to 3.3m (north) and 1.2m to 3.29m (south).
The contentions
The contentions in the case are whether the design of the development is compatible with the character of the local area; its streetscape is appropriate, whether the design principles of SEPP65 are met and if an appropriate level of internal amenity is provided within each unit. A number of the draft conditions proposed by the council were also the subject of debate during the hearing.
The site and locality
The site is described as Lot 12 in Deposited Plan 1145907 and is known as No. 22 Northumberland Road, Auburn. It is located on the western side of Northumberland Road between Rawson and Hall Streets and is a regular shaped allotment with a frontage of 15.24m, depth of 50.29m and site area of 766.42sqm. Prior to the excavation works commencing the site had a slight fall from its rear to the street.
At the present time the site is excavated to the first basement level and perimeter retaining walls are in place.
Development surrounding the site is varied in terms of scale, form, age and use. The adjoining site to the north is a mixed-use building consisting of two street level commercial/retail tenancies with parking to the rear and 8 residential units across two additional floors. A large at-grade carpark is located to the immediate north of that site and used by patrons of the Auburn RSL, a large club to the north-east of the site.
The adjoining site to the south is a 2 storey residential/commercial building with various tenancies. Located to the west is a mixed-use development (No 11 Macquarie Road) consisting of basement carpark, ground floor commercial/retail and residential tenancies with 3 residential floors above.
Another club, the Auburn Soccer Club is located opposite the site and a council owned and operated community centre is located to its south. That facility includes a community garden at the front of the site.
Auburn Railway Station is approximately 175m to the south of the site. Development within the block bounded by Northumberland Road, Hall Street, Macquarie Road and Rawson Street varies in height from single to a 4 and 6 storey mixed use development opposite the railway station. The site is within the northern end of the Auburn Town Centre. The railway line bisects that centre.
The planning controls
The site is zoned Mixed Use - B4 under Auburn Local Environmental Plan 2010 (LEP). The objectives of the 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 encourage high density residential development.
· To encourage appropriate businesses that contribute to economic growth.
· To achieve an accessible, attractive and safe public domain.
Business premises, offices premises, residential flat buildings and shop top housing are uses that are permitted with consent in the B4 zone.
Auburn Development Control Plan 2010 (DCP) supplements the planning controls contained within the LEP. This plan contains specific provisions that apply to the Auburn Town Centre and, in section 13.2, establish setback controls and 13.3, controls for street wall heights. For the site, the setback from the street is to follow the existing setback and the street wall height control states that the height of the built edge to the street (street wall) formed by new or infill development within Auburn Town Centre shall be consistent with Figure 6. Figure 6 shows a 4 storey wall/built edge for the site.
The current application is lodged as infill housing under the provisions of SEPPARH. Relevant provisions are contained within Part 2 Division 1. These include standards that cannot be used to refuse consent (cl14) and the continued application of State Environmental Planning Policy 65 - Design Quality of Residential Flat Development (SEPP65) (cl16). Importantly, clause 16A provides that a consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
The evidence
The hearing commenced on site with evidence heard from two objectors to the proposal. The view included observation of the site from one of the objector's units within the mixed used development to the rear of the site, No. 11 Macquarie Road, Auburn and a walk around the local area.
The issues raised by the objectors is summarised as follows:
- Loss of privacy;
- Need to keep windows and blinds open because of health issues, won't be able to sit on balcony;
- Development is too close to windows and balcony of adjoining units;
Expert planning evidence was heard from Mr A Betros for the applicant and Mr D Ryan for the council.
The experts agree that the proposed development has a floor space ratio (FSR) of 3.29:1 which is less than the allowable development standard inclusive of the applicable bonus provided for under SEPPARH (3.5:1); that the height, at approximately 20m is below the current height limit of 27m contained in the LEP and that the locality is suitable for medium to high density housing and specifically affordable housing, given its proximity to the Auburn Town Centre and Rail Station.
Their evidence also includes advice that Auburn Council has submitted a Planning Proposal to the Department of Planning and Infrastructure to increase the FSR and height of B4 zoned land north of Auburn Railway Station, including the subject site (being 3.6:1 and 32m respectively), which has been guided by an Urban Design Study prepared for council by AECOM and an earlier Urban Design Density Study prepared by GMU.
They disagree on whether the proposed development is out of context and incompatible with the local area. My Ryan takes an holistic view and considers the building as a whole whereas Mr Betros's expert report was prepared on the basis of assessing the impact of the additional 3 levels proposed under the current application and the net improvement the alterations make to the works approved under the original consent. That is because, in his opinion, the approved 4 storey building is already under construction and the modifications proposed to the approved levels are minor and only serve to improve internal solar access.
My Ryan says that the development should be considered as a whole and when that it done maintains the street wall height is excessive and should only reach 3 storeys when considered in its context, particularly in relation to the adjoining development. He also says that the height of the building should take its cues from the six storey building at the corner of Rawson Street and Northumberland Road and that the building height should step down from that point along the street frontage and the maximum building height should not exceed that six storey height. He says that the narrow site width, proximity of adjoining buildings to side boundaries and the design of the development will result in a 'tall skinny' building that will remain entirely out of context and out of proportion with adjoining development and, if those adjoining sites are redeveloped on a similar basis, this would lead to a series of tall, skinny buildings, with minimal side setbacks and separation, creating the poor visual and aesthetic outcomes reflected in the contention.
Mr Betros says that the additional two levels above the front/street facing component and 3 additional levels atop the rear of the approved 4 storey building will result in an appropriate and compatible outcome, not only with the existing streetscape but also with the desired future character. The proposal is permissible in the B4 zone and also satisfies the zone objectives as the mix of uses on the site are compatible and provides for a higher density of development, which is accessible to public transport. He says the height, at 22m, is well below the current 27m limit, notes the proposal is compliant with both the existing FSR controls and is also well within that contemplated for the site and surrounding area in draft planning controls intended by council. He says the proposed streetscape presentation has been suitably designed so that the upper levels are recessed from the approved street wall height and the height to width ratio of the building to the site is also typical of that in high density locations.
In Mr Ryan's opinion, the proposed development fails to meet the design quality principles described in SEPP65 and the associated Residential Flat Design Code (RFDC) which are mandatory considerations for this application under SEPPARH and concludes that this is further reason that the development fails the implied 'test' in clause 16A as he expects the SEPP65 principles will be applied to future development in the area.
The contention in relation to internal amenity of the units is in relation to solar access and building separation. One of the standards that cannot be used to refuse consent contained in clause 14 of SEPPARH is solar access and, if living rooms and private open spaces, for a minimum of 70 per cent of the dwellings of the development, receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, solar access cannot be used as a reason for refusal.
Solar access diagrams were prepared for units 5, 7 and 8 only. During the hearing the experts conducted an analysis of the number of units that they considered would receive 3 hours sunlight to the living rooms and private open space. That exercise was repeated for 2 hours, in accordance with the rule of thumb provision for daylight access contained in the RFDC that may be considered acceptable for developments in dense urban areas. Both experts agreed that they were unsure of the exact impact of the building to the rear would have in their analysis, as its precise location and height were unknown, and therefore included question marks within the table where that uncertainty existed. The table prepared forms Exhibit 8 and it is agreed that to be compliant with the SEPPARH standard, both the living area and the private open space area of each unit must receive 3 hours direct sunlight.
The difference between the planners in relation to the 3hour table is that Mr Betros said that the narrow slithers of sunlight that reached that portion of units 5, 9 and 13 adjacent to the laundry/entry area received sunlight and that space was considered to be living room. Mr Ryan disagrees and says that the living room, as identified on the plans is at the eastern end of that space and does not receive any sunlight.
Mr Betros concludes, that with the addition of skylights to the living room of unit 23 that 11 of the 23 units would receive the 3 hours sunlight. This equates to 47.83% and does not satisfy the provision. Mr Ryan is unsure whether units 7, 11 and 15 would comply due to the buildings at the rear of the site and the proposed dividing walls so says only 9 units would comply and three may comply. That would result in 39% or 52% of units receiving 3 hours sunlight.
Mr Ryan had similar concerns in relation to units 17 and 18 in relation to whether the private open space of those units would receive 2 hours of sunlight. The difference between the two experts in this table is that Mr Betros says that 65% of the units will receive 2 hours and Mr Ryan says only 52% will. They both agree that the clause 14 standard for solar access is not met for the development as a whole.
Mr Betros says that the amendments proposed to the lower levels of the building improve the internal amenity whilst the new, upper level apartments will be provided with a high level of amenity due to their elevation above street level and 70% of the new units would receive the required 3 hours sunlight. Mr Ryan says the adjoining property to the north, No. 24 may be redeveloped in the future and if this is the case, the limited sunlight to proposed units 5, 9 and 13 is likely to be lost unless the separation distances specified in the RFDC are applied to that site.
In relation to the overshadowing impacts of the current application, Mr Ryan says that the separation distances between the proposed building and Nos 20 and 24 Northumberland Road are significantly less than the RFDC guidelines of 9 - 12m at these lower levels and if those properties were to be redeveloped to a similar height to that proposed under the current application, the building separation of 13 - 18m at the upper levels could not be achieved. He says the consequence of this is that the proposal creates unsatisfactory and unacceptable impacts on the amenity of adjoining properties in terms of overshadowing and visual and acoustic privacy under current conditions. It would also have the consequence of increasing the extent of overshadowing on the Northumberland Road Reserve and Community Harmony Garden, used by local residents for cultivating plants. He says that this overshadowing affects the amenity and useability and possibly cultivation activities on the space and the development, if approved, would act as the precedent and 'design template' for any future redevelopment of the sites to its south.
Mr Betros says that the additional shadow cast by the building is minor and would only affect the garden for one hour a day in mid winter. He also relies on the existing consent in terms of the siting of the building and impacts to adjoining properties and says, that because No 24 is strata titled, that factor constrains its redevelopment potential.
The conditions in dispute are part of the proposed deferred commencement conditions that relate to the reinstatement of the ground floor commercial tenancy rather than its conversion to the live/work unit and the allocation of the commercial accessible space to resident parking.
Proposed condition 3 of the operative conditions requires the surrender of the existing consent prior to the issue of any construction certificate. The applicant opposes this condition as it relies on it for the works undertaken to date. The council says that it is simpler to have one consent applying to the whole of the works and has tailored the conditions accordingly.
The council did not oppose use of unit 23 as a live/work unit provided conditions were imposed to require installation of skylights so that the unit received a minimum of three hours sunlight mid-winter. It was its position that one carparking space should be allocated to each unit and therefore a total of 23 spaces would be required for residential tenancies. Mr Staunton submits that the shared use and relocation of the proposed loading bay could address this issue however concedes that one unit would not be allocated a parking space.
Conclusion and findings
The provisions of SEPPARH require consideration of the development as a whole and also require application of SEPP65 provisions. I accept Mr Staunton's submission for the applicant that regard must be had to the existing consent however, I also have regard to the extent of changes that are proposed to that part of the building and the impact of the additional floors proposed.
For consent to be granted, the Court must take into consideration whether the design of the development is compatible with the character of the local area. The local area, as described above, is varied in nature and built form and is clearly an area undergoing transition. The issue of assessing compatibility was considered by the then Senior Commissioner in Project Venture Developments v Pittwater Council [2005] NSWLEC191 where, at [23] he states:
It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.
I do not place significant weight of the planning proposal forwarded to the Minister however I do accept that the current controls provide for development of greater height than proposed and that height is likely to increase. The DCP controls also require the height of the built edge to the street (street wall) formed by new or infill development within the Auburn Town Centre shall (emphasis added) be consistent, in this case, to a 4 storey wall/built edge.
For that reason, I do not accept Mr Ryan's view that a 3 storey wall height is appropriate however, I do accept his position that the proposed setbacks to the upper two additional floors are not consistent with the desired future character of the area as detailed in the council's current planning controls. The setbacks proposed are minor and the building would be read as a 6 storey building. This is not compatible with either the existing or future character of the area.
I do not consider that this is the end of the assessment, further consideration of whether the design of the development would be capable of existing in harmony and again, assistance is provided in Project Venture where, at [26] it is stated:
The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.
The original consent provides for the construction of a building in close proximity to side boundaries. This has impacts on the adjoining properties and the internal amenity of the proposed units and the additional levels proposed exacerbate those impacts. The impacts are also a result of the form that the adjoining development takes, particularly No. 24 however, this building does not establish the rhythm of the local area. As a consequence of not providing for additional setbacks from the side boundaries for the upper levels as envisaged under SEPP65, the development would not exist in harmony with the surrounding space.
For these reasons, I am not satisfied that the design of the proposed development is compatible with the character of the local area or its likely future character. The width of the site is a factor that affects its development potential. This is the case under the current controls and therefore, despite any planning proposal of the council to increase FSR and height, it may not be possible to achieve these heights on a narrow site. Like the majority of planning controls and development standards, they represent a maximum rather than a right. So too does the FSR bonus provided for under SEPPARH. That only applies when a development is designed so as to be compatible within its context.
SEPPARH also requires consideration of SEPP65. In this case, the design quality principles are relevant and I am not satisfied that adequate regard has been had to them, either under the original consent or assessing the new work. Whilst I accept Mr Betros' evidence that the solar access to the units approved under the original consent will be improved, there are still a number of units that will receive inadequate sunlight to their living rooms and balconies. Similarly, the proposed setbacks to the side boundary do not address visual or acoustic privacy. For that reason, I do not consider the notion of improvement is one that justifies exacerbating unsatisfactory building design in terms of the SEPP65 principles.
As I have found that the design of the development is not compatible with the character of the local area, it is not appropriate that consent is granted. I also consider that there is an inappropriate level of internal amenity to the units, particularly in relation to access to sunlight. Finally, I am not satisfied that adequate regard has been had to the design quality principles of SEPP65 or the provisions of the RFDC, particularly in relation to side boundary setbacks, visual and acoustic privacy and that the additional floors proposed will exacerbate an already unsatisfactory situation. Accordingly, it is not necessary to consider the conditions in dispute.
The Orders of the Court are:
(1) The appeal is dismissed.
(2) Development Application DA-29/2012 for alterations and additions to the mixed-use building at 22 Northumberland Road, Auburn is refused consent.
(3) The exhibits, other than exhibits A and 2, can be returned.
____________________
Sue Morris
Commissioner of the Court
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Decision last updated: 08 March 2013
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