Castlenorth Pty Ltd v Willoughby City Council

[2018] NSWLEC 1014

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Castlenorth Pty Ltd v Willoughby City Council [2018] NSWLEC 1014
Hearing dates:	21 December 2017
Date of orders:	30 January 2018
Decision date:	15 January 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	Orders made – see [47]
Catchwords:	APPEAL – modification application – increase to lift overrun to allow lift to access approved communal open space – increase of lift car height – justification for increase in height - overshadowing – negligible impact on the public domain
Legislation Cited:	Environmental Planning and Assessment Act 1979 Willoughby Development Control Plan 2016 Willoughby Local Environmental Plan 2012
Texts Cited:	Building Code of Australia
Category:	Principal judgment
Parties:	Castlenorth Pty Ltd (Applicant) Willoughby City Council (Respondent)
Representation:	Counsel: Mr A Pickles SC (Applicant) Mr Merlino, Solicitor (Respondent)   Solicitors: Domain Legal (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2017/244782
Publication restriction:	No

Judgment

1. On 20 July 2015, Willoughby City Council (“the Council”) granted development consent for a five-storey mixed use development with commercial space and residential units at 147-151 Sailors Bay Road, Northbridge. The consent includes a roof terrace above the fifth storey for communal open space. As approved in the development consent, the roof terrace was not accessible from the lift that served the building, but was instead accessed by stairs from the fifth storey. A chair lift provided access to the roof terrace for those with a disability. The development consent was modified on 20 April 2016 to allow the lift to access the roof terrace. However, despite approving lift access to the terrace, the modification that was approved did not provide sufficient lift overrun to enable the lift to physically access the roof terrace. Castlenorth Pty Ltd (“Castlenorth”) lodged a further modification application to seek that lift overrun, together with an increase in the height of the lift car from 2.1m to 2.3m, an increase in the height of the mechanical exhaust structure and a reduction in the area covered by the lift overrun and mechanical exhaust. The Council refused to grant the modification application. Castlenorth appeals against that decision pursuant to s 97AA of the Environmental Planning and Assessment Act 1979 (“EPA Act”).

2. What is sought by Castlenorth would result in an increase in the RL of the approved height of the lift overrun by 1.03m. However, for the reasons below, the extent of what I am required to consider in this application is the uppermost 20cm portion of the additional height sought. At best, the Council asks me to consider the uppermost 45cm portion of the increase in the height. The proposed lift overrun has approximate dimensions of 2.7m x 3m, whereas the approved lift overrun has approximate dimensions of 4.8m x 3m.

3. In considering these portions of the proposed increased height for the lift overrun, I am not required to consider the appropriateness of a five-storey development with a roof terrace on the site. The development consent for the erection of a five storey building with a roof terrace was given by the Council, and is not before the Court in the present application. The modification application to allow a lift to access the roof terrace was similarly granted by the Council, and is not before the Court. There is no scope for me to reconsider those applications in the present proceedings.

4. However, what the Council approved through the modification application cannot physically be achieved. The parties’ experts both agree that there needs to be an increase in the height of the lift overrun to allow what the Council approved to be carried out. The Council accepts that some increase is required. What remains in dispute is then the 20cm additional height that would be required for the lift overrun to accommodate an increase in the height of the lift car, and a question about whether the headroom sought by Castlenorth is indeed required (being a difference of 45cm, which includes the 20cm additional height for the lift car).

5. The Council opposes the modification of the consent on the basis that it will cause additional height in excess of the height control and additional overshadowing of the public domain. The public domain said to be overshadowed by the lift overrun is the public road. The Council also submits that the application should be refused on the basis that Castlenorth has not demonstrated that the increase in the height is justified, or that the overshadowing caused by the increase in the height has been minimised. The Council also submits that further exceedance of the applicable height development standard is not warranted.

6. For the reasons below I have determined that none of the contentions raised by the Council warrant refusal of the modification application, and therefore that the modification of the consent should be granted as sought. For the reasons that follow, the impacts about which the Council is concerned most likely arise from the building as approved, and do not arise from the present application. The present application completes the approval already granted by the Council for the lift access to the terrace, and provides greater amenity to the future residents by increasing the height of the lift whilst having negligible impact on the public domain.

The site and the locality

7. The site is described as Lot 1 and Lot 2 DP211836 and Lot 2 Section 1 DP 7349, and is known as 147-151 Sailors Bay Road, Northbridge. It is located on the northern side of Sailors Bay Road between Bellambi Street and Harden Avenue, with frontage to Sailors Bay Road and vehicular access from Fred Roberts Lane at the rear of the site.

8. A mixed use building, comprising ground floor commercial units and residential units on the upper levels, is currently under construction on the site following the grant of development consent DA-2014/419 dated 20 July 2015, as modified by DA-2014/419/A on 20 April 2016. The design of the building is as a streetwall with active frontage at the street level.

9. The site is located within the Northbridge shopping strip, in a nominated local centre. Adjoining the site to the west is a podium style five storey mixed use residential and commercial building, with ground floor commercial units presenting to Sailors Bay Road and the upper floor residential units setback from the road and the side boundaries. Adjoining the site to the east is a 2-3 storey building with ground floor commercial and retail.

The planning controls

10. The site is zoned B2 Local Centre in the Willoughby Local Environmental Plan 2012 (“WLEP 2012”). The objectives of the B2 zone are:

“• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To enhance the viability, vitality and amenity of local centres.”

11. Clause 4.3 of the WLEP 2012 provides the development standard for the height of buildings, which for the site is 14m. The height of the building, as approved through the grant of development consent and the subsequent modifications, varies from 16.2 to 18.5m. What is now sought is an additional 1.03m, with that additional height sought over an area of around 2.7m x 3m. The height increase sought for the mechanical exhaust structure is less than the 1.03m sought for the lift overrun.

12. The objectives of the development standard for the height of buildings are as follows:

“(a) to ensure that new development is in harmony with the bulk and scale of surrounding buildings and the streetscape,

(b) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion,

(c) to ensure a high visual quality of the development when viewed from adjoining properties, the street, waterways, public reserves or foreshores,

(d) to minimise disruption to existing views or to achieve reasonable view sharing from adjacent developments or from public open spaces with the height and bulk of the development,

(e) to set upper limits for the height of buildings that are consistent with the redevelopment potential of the relevant land given other development restrictions, such as floor space and landscaping,

(f) to use maximum height limits to assist in responding to the current and desired future character of the locality,

(g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood,

(h) to achieve transitions in building scale from higher intensity business and retail centres to surrounding residential areas.”

13. The Willoughby Development Control Plan 2016 (“WDCP 2016”) applies, and includes the following aims at Part A.3 (insofar as they are relevant):

“A.3 Aims of the Plan

The aims of this Plan are to:

…

3. Ensure that new development satisfies a high standard of urban design to create a unified streetscape, which contributes positively to the streetscape, reinforces the importance of pedestrian areas and provides an attractive environment;

…

7. Provide for a high level of accessibility to and within all development within the Willoughby City local government area;

8. Set appropriate environmental standards which achieve high levels of residential amenity such as solar access, privacy, noise, views, security, landscaped open space, convenience of access and parking to the occupants and to adjacent properties;

9. Preserve and enhance the character and amenity of the residential zones and to ensure that future development within those zones is compatible in scale and character with existing development;

…

11. Encourage the development of a variety of housing types which are compatible with the urban scale and character of existing neighbourhoods and which take into account the environmental constraints;

12. Ensure the scale and neighbourhood role of business zones is maintained and that any redevelopment is compatible with existing development;

...”

14. Part E of the WDCP 2016 sets out controls that apply specifically to commercial and shop top housing. E.1.2 states that the intent of the commercial and shop top housing development is to achieve:

“• The maintenance and improvement of the existing or planned scale and character of the street;

• Maintenance of solar access to public places and footpaths;

• Buildings which are appropriate to their setting and will provide a well integrated backdrop to the streetscape; and

• Maintenance of the amenity of any adjoining residential land in terms of building bulk and solar access.” [emphasis added]

15. The performance criteria for building height for commercial and shop top housing in E.1.2 includes:

“The height of the building must ensure that:

– solar access to adjoining properties and key areas of the public domain is maintained;

…

– the building height does not overwhelm the public street and is compatible with the existing or planned scale of surrounding developments.”

16. Part E.4 of the WDCP 2016 sets out relevant controls with respect to development in the Northbridge Town Centre. Cl E.4.4. of the WDCP 2016 states that the intent of the 14 metres building height control in the Northbridge Town Centre is:

“(1) To create consistent building heights that protect amenity and provide sunlight access to the public and private domain.

(2) To provide building depths and setbacks that allow natural light and ventilation and the incorporation of sustainable development principles into design; and

(3) To allow a scale of development that is consistent with the existing physical context and desired future character of the Northbridge Town Centre.” [emphasis added]

17. Part E.4.11 of the WDCP 2016 relates specifically to the Sailors Bay Road West precinct where the site is situated. These controls specify the following desired future character:

“Sailors Bay Road West will be improved by enhancing the pedestrian environment along the commercial frontages of the street with street furniture and street planting that maintains the different character of the north side of the street. The different character of the north side will be strengthened by developing a consistent streetwall of buildings with active frontages at the street level and up to 4 storeys (14m) overall in height to maintain the residential amenity of the southern side of the street in terms of scale and solar access.”

18. Part E.4.11 also specify the following intent for the height and setback controls:

“1. To maintain solar access to the southern footpath of Sailors Bay Road.

2. To ensure streetscape character, residential character and amenity for the proposed development, neighbouring sites and the public domain are all addressed.”

19. Clause C.6.2.1 of the WDCP 2016 also requires that “developments will be required to comply with the accessibility requirements of the Building Code of Australia and the Disability (Access to Premises- Buildings) Standards 2010 at Construction Certificate stage where they apply”. The Building Code of Australia (“BCA”) requires in its deemed-to-satisfy provisions at D3.1 that for buildings of this type, it must be accessible in that from “a pedestrian entrance required to be accessible to and within rooms or spaces for use in common by residents on levels served by the lift.” The parties agree that the effect of this and the related provisions is that for a building serviced by a lift, a platform chair lift cannot be used to service a common area of the building in lieu of lift access.

Objections by local residents

20. The hearing commenced on the site, and evidence was given and submissions made by residents who object to the modification application. Mr Sheldon, a local resident, expressed his concerns that the roof top communal area is no longer a plant room and that it has instead become a sixth storey rendering the building a six-storey development. He expressed that this additional height is caused by the location of the communal area on the roof, which he says should be relocated to a lower level. Mr Sheldon made submissions that the communal area on the roof would result in overlooking and cause visual and acoustic privacy issues that would impact the amenity of his own home and the homes of neighbouring residents. He also submits that approval of the additional height will create a new height and floor space ratio benchmark for future developments in the area. He also says that the requirements for access to the roof should have been known by the architect and dealt with at an earlier stage (presumably at the development application stage).

21. Mr Menzies also made submissions on behalf of the Northbridge Progress Association, and says that a six storey development should not become the new standard for development on Sailors Bay Road. Mr Menzies is concerned about the incremental increases in the height of the building, resulting in additional breaches of the applicable height limit. In his submission, the height control should be upheld rather than ignored.

22. Much of these submissions are concerned with the development consisting of five-storeys with a communal roof terrace, which they say results in a six-storey development. This building, its roof terrace, and the variation to the height control, was approved by the Council through the development consent and the modification to that consent. As set out earlier, it is not within the scope of the issues raised in this appeal to reconsider the approvals already granted.

23. The issues in this appeal are confined to the increase in the lift overrun and mechanical shaft. There is no increase in the floor space ratio that results from the modification application that is before me on appeal, and the access to the communal roof terrace by a lift has already been approved by the Council in the previous modification application. The remaining concerns of the local residents, concerning the further increase in the height, were part of the issues on appeal and are considered below.

Understanding the disputed increase

24. Mr Byrnes and Mr Brunton, town planners, gave expert opinion evidence in their joint report and at the hearing. They agree, and the Council accepts, that some increase in the lift overrun is required in order to allow the lift to access the communal roof terrace.

25. The dispute regarding the quantum of the height increase for the lift overrun arises from two elements. The first is that Castlenorth seeks to increase the height of the lift car from 2.1m to 2.3m to provide better amenity to the residents and allow furniture to be transported in the lift. The Council opposes that increase.

26. The second element is that the headroom depicted in the shaft vertical section details has a height of 4050mm, whereas specifications from the lift manufacturer provided by the Council at the hearing suggest that the minimum headroom is 3600mm. The Council therefore disputes the headspace sought in the application and says that further justification should be provided as to why an additional 45cm headspace is required. I note that it can be inferred from the plans that the increased height of the lift car is accommodated in that additional 45cm height that is disputed as part of the 4050mm headspace.

27. Whilst the modification application currently seeks to increase the maximum height of the lift overrun to RL 109.15, the evidence is that the finished floor level (“FFL”) of the lift lobby for the communal roof terrace has now been constructed and is slightly lower than what has been approved through the construction certificate, resulting in a FFL of 104.87 (rather than 104.92). The height of the lift overrun that Castlenorth actually seeks is therefore RL 109.1. The approved lift overrun is RL 108.07.

The contentions in dispute

28. The Council raises three contentions upon which it says the modification application should be refused, which can be summarised as follows:

• The reasons provided for the increase in the lift overrun do not adequately justify the increase in height.

• The proposed increase in height will further increase the extent of overshadowing of the public domain and the applicant has not taken steps to minimise that overshadowing.

• It is not in the public interest to allow the development to further exceed the height control, and allowing it will erode the height control.

29. The Council submits that there is not adequate justification as to why the technical requirements of the lift require a lift overrun of the extent sought, and says that a lift car height of 2.1m is adequate. The Council submits that the modification application has not demonstrated consistency with the objectives of clause 4.3 of WLEP 2012. The Council says that no justification has been given that considers those objectives and how the exceedance is supported by environmental planning grounds

30. The Council says that the approved building will cause overshadowing of the public domain in Sailors Bay Road and Bellambi Street as anticipated within WDCP 2016, and submits that any further increase in height will cause further overshadowing of the public domain beyond what was anticipated and what is warranted. The Council submits that in considering the 14m height control, the Court is required to consider the intent of WDCP 2016 which outlines both at E.1.2 and E.4.4 the importance of maintaining solar access to the public domain. The Council submits that given there is an increase in overshadowing of the public domain caused by the proposed increase to the lift overrun, and given that Castlenorth haven’t adequately justified the proposed increase, it should be refused.

29. Further, the Council submits that Castlenorth has failed to minimise that overshadowing, as required by the objectives of the height development standard at cl 4.3 of the WLEP 2012, as they have chosen to seek a lift car of height greater than 2.1m and failed to provide details as to why the lift specifications require lift headroom to the extent sought.

30. The Council relies on the evidence of Mr Brunton in support of these submissions, who opines that overshadowing should only be increased to the public domain if the increased lift overrun is “essential and unavoidable”. Mr Brunton also opines that the flexibility afforded by cl 4.6 of the WLEP 2012 has already been given to Castlenorth, and no further breach of the height control is warranted.

31. The shadow diagrams demonstrate that in mid-winter, the additional overshadowing caused by the increased height falls entirely on Soldiers Bay Road. Whilst Mr Brunton indicated that there could be some margin of error with a shadow diagram demonstrating such a small area of shadow, and that the topography of the land may cause some variation between the diagram and what occurs in reality, he accepted that the additional overshadowing was barely discernible.

32. The Council finally submits that there is a public interest in not allowing a further variation to the height control, and that it is not in the public interest to permit the development standard to be exceeded by 39.85%. The Council submits if such a variance is approved, there is a further erosion of the development control for height.

33. Castlenorth submits that in circumstances where the Council has already approved the variation to the height control, a further variation should be granted for a modification that has negligible impacts and facilitates compliance with the BCA for access for persons with a disability. Castlenorth says that the lift overrun is justified by the technical specifications and by the amenity afforded to its residents by having a lift car height of 2.3m. Castlenorth relies on the evidence of Mr Byrnes and submits that the proposal is consistent with the objectives of the height control in cl 4.3 of the WLEP 2012, and the proposed increase to the height of the lift overrun has no discernible impact on the public domain.

34. Castlenorth also submits that the proposal as a whole is consistent with the aims of the WDCP 2016 to provide a unified streetscape with a street wall presentation, and that the present application proposes a lift overrun that is at a height consistent with the roof top structure on the adjacent building to the west. Further, Castlenorth submits that the proposed modification provides a better outcome as it reduces the bulk of the mechanical shafts and the lift overrun notwithstanding that the height is increased.

35. Castlenorth also submits that if the Court was to carry out an assessment pursuant to cl 4.6 of the WLEP 2012, it would come to the conclusion that there are sufficient environmental planning grounds to justify a further departure from the height development standard. Castlenorth submits that the Court would also be satisfied under cl 4.6 that compliance with the standard was “unreasonable or unnecessary” in circumstances where the additional lift overrun is required to improve amenity of residents and allow access to the roof terrace, and has negligible adverse impacts on the public domain and the surrounding neighbourhood.

The modification should be allowed

38. I accept that there is adequate justification for the increase in the height of the lift overrun. Firstly, I accept the evidence that additional height for the lift car is sought for improved amenity and to facilitate furniture delivery. Indeed, the lift car height approved in the original development consent was 2.3m. Secondly, the specifications for the lift provided in the lift shaft sections demonstrate that the headroom required is 4050mm. Very little weight can be placed on the specifications obtained by the Council, which are only general lift specifications and stand in contrast to the design that is particular to the site, its location and the building as approved. The necessity for the increased height is further supported by the letter of Mr Byrnes dated 9 February 2017 and lodged with the modification application, which states:

“Further to the meeting at Council’s chambers on April 18, 2016 approval was granted to amend variations to the DA-2014/419/A, after previous lodgement on November 15, 2015. All matters identified were recommended for approval. However, the variation to height necessitated by change to the lift overrun was refused by the determination of the delegated Sailors Bay Ward Council Inspection Committee (SBWCK).

In the interim there has been further investigation of any and all means by which the lift tower's original height approval of RL 108.07 could still be achieved, but all such avenues have been exhausted and this renewed S96(1A) Application herein is the result. The variation is essential to achieving Code compliance pedestrian access to the topmost floor level.” [emphasis added].

39. I also accept the submission of Castlenorth that the impact of the increased lift overrun on the public domain is negligible. The contention raised by the Council concerning overshadowing cannot be sustained. In fact, the overshadowing caused by the lift overrun and other plant equipment is minimised by virtue of their placement centrally within the building envelope. As a result, the overshadowing caused by the additional height of the lift overrun falls entirely on the roadway, which is not an area of the public domain that relies on sunlight in winter for its amenity. I therefore accept the evidence of Mr Byrnes and Mr Brunton that the roadway is not a significant component of the public domain. As such, I am of the view that the provision of additional amenity for future residents through the increase in the height of the lift car, and the provision of a lift overrun that enables the lift to access the communal roof terrace, does not cause an adverse impact on the public domain or the surrounding neighbourhood.

40. I similarly do not accept the Council’s submission that by allowing the increase in height of the lift overrun I am endorsing further erosion of the height control for the site, against the public interest. Apart from the 20cm increase in the height caused by the increased height sought for the lift car, the present application is a consequence of the two earlier approvals granted by the Council. In granting the development consent, the Council considered that it was appropriate to vary the height standard to allow a five storey development with a roof terrace on the site. The present modification application seeks a lift overrun that will allow that development to be carried out. A refusal of the modification application will prevent the lift from accessing the roof terrace, which will be contrary to the earlier approval by the Council and will also preclude the development from meeting the requirements of the BCA, which forms part of the Council’s requirements in cl C.6.2.1 of the WDCP 2016. That is, apart from uppermost 20cm increase in the lift overrun, the increase sought by the present application is the inevitable consequence of what the Council has already approved. It is the Council’s grant of consent, therefore, that has resulted in any alleged erosion of the height control.

41. Further, I do not accept that the approval of an additional 20cm for the lift overrun to accommodate a lift car of 2.3m height creates a new height control or further erodes the existing control, in circumstances where the original lift car height approved by the development consent was 2.3m and where that portion of the increase will have negligible impact on the overshadowing of the public domain, as set out above.

42. Whilst I accept that the development consent alone does not give a general licence to Castlenorth to incrementally increase the height of the building, that is not what this modification application is seeking to do. Rather, the modification application is seeking to perfect what the Council has already approved.

43. I am not of the view that I need to undertake an assessment of the modification application pursuant to cl 4.6 of the WLEP 2012. The Council has already undertaken that assessment in considering the development application. In doing so, it can be inferred that the Council considered that a five storey building with a communal roof terrace in the proposed design was consistent with the objectives of the zone and the objectives of the height control. The only thing that has changed about the proposal is providing lift access to the communal roof terrace. That change is required by the application of cl C.6.2.1 of the WDCP 2016 and I have determined that it has negligible adverse impacts. As such, there is nothing about this particular modification application that warrants reconsideration of the matters arising under cl 4.6 of the WLEP 2012.

44. It is clear, therefore, that none of the contentions raised by the Council warrant refusal of the modification application. The impacts about which the Council is concerned, such as overshadowing and the potential erosion of the applicable height control, may arise from the building as approved, but do not arise from the present application. The present application completes the approval already granted by the Council by making it possible for the lift to access the communal roof terrace, and provides greater amenity to the future residents by increasing the height of the lift car whilst having negligible adverse impact.

45. The appeal should therefore be upheld. However, given the inconsistency between the development consent as modified, the construction certificate, the as-built finished floor level and what is sought, final plans demonstrating the RL of 109.1 for the height of the lift overrun should be provided prior to the application being formally approved. The final conditions, which are agreed, will need to be updated accordingly. Once that has been completed, the final orders will be made in chambers.

46. I make the following directions:

1. The applicant is to file and serve amended plans by 19 January 2017 that reflect the as-built finished floor level for the roof terrace at RL 104.87 and the maximum height of the proposed lift overrun at RL 109.1.

2. The respondent is to file and serve, and provide to the Court by email as a word document, the final conditions of consent (including consolidated conditions of development consent) by 29 January 2018.

3. Liberty to restore is granted on 2 days notice.

4. Exhibits 2, 4, 6, C and D are returned.

Addendum made on 30 January 2018

47. In accordance with the directions in paragraph 46 of my judgment of 15 January 2018, Castlenorth provided amended plans and the Council has filed agreed conditions of development consent to reflect the amended plans. I am satisfied that the application should be granted based on the amended plans. The result is that the development consent will now be subject to the consolidated conditions of consent provided by the Council and annexed to the judgment. Accordingly I make orders in chambers as follows:

1. The appeal is upheld.

2. The application (2014/419/B) to modify development consent DA2014/419 to increase the height of the lift overrun at 147-151 Sailors Bay Road, Northbridge, is granted.

3. The development consent DA2014/419 is now subject to the consolidated conditions of development consent at Annexure A.

……………………….

Commissioner Gray

Annexure A (565 KB, pdf)

Amended plans (3.75 MB, pdf)

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Amendments

31 January 2018 - Addendum made on 30 January 2018

Decision last updated: 31 January 2018