Cooking Master Pty Limited v Waverley Council

[2014] NSWLEC 1192

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cooking Master Pty Limited v Waverley Council [2014] NSWLEC 1192
Hearing dates:	8-9 September 2014
Decision date:	16 September 2014
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld subject to conditions see [35]
Catchwords:	DEVELOPMENT APPLICATION: Residential flat building; FSR, streetscape, views, solar access
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development Waverley Local Environmental Plan 2012
Cases Cited:	Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Cooking master Pty Limited (Applicant) Waverley Council (Respondent)
Representation:	Applicant: Ms S Duggan SC (Barrister) Respondent: Mr M Staunton (Barrister) Applicant: Newhouse & Arnold Respondent: Wiltshire Webb Staunton Beattie
File Number(s):	10151 of 2014

Judgment

1. COMMISSIONER: The applicant appeals Waverley Council's deemed refusal of Development Application No. 357/2013 for the demolition of existing dwellings and the construction of a residential flat building with basement car parking at 649-651 Old South Head Road, Rose Bay (the site).

1. The appeal is made pursuant to s 97(1)(b) of the Environmental Planning and Assessment Act 1979 (the EPA Act).

1. In April 2014, the Court granted the applicant leave to rely on amended plans.

1. The development application, as amended, proposes:

• Demolition of existing dwellings at 649 and 651 Old South Head Road;
• Construction of a four storey, 17 unit residential flat building comprising 10 x 1 bedroom dwellings, 5 x 2 bedroom dwellings, and 2 x 3 bedroom dwellings; and
• Basement car parking for 18 cars including two visitor spaces, accessed from Old South Head Road.

1. Based on the amended proposal, council contends the development application should be refused on the following grounds, as summarised from council's Statement of Facts and Contentions:

• Out of character with the residential zoning of the site;
• Uncharacteristic presentation in the streetscape;
• Inconsistent with context, scale and built form criteria in State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65);
• Unacceptable impacts on privacy of adjoining properties;
• Unacceptable impacts on views from adjoining properties;
• Excessive bulk and unacceptable visual impacts;
• Unacceptable shading of 647 Old South Head Road;
• Isolation of 647 Old South Head Road and impacts on development potential;
• Overdevelopment of the site resulting from a breach of the Floor Space Ratio (FSR) controls in Waverley Local Environmental Plan 2012 (WLEP) and other provisions of Waverley Development Control Plan 2012 (WDCP);
• Poor amenity for future residents of the development;
• Inadequate landscaping; and
• Not in the public interest.

The site and its locality

1. The site is on the eastern side of Old South Head Road. The western side of Old South Head Road falls within the Woollahra Council local government area. Opposite the site is a mixed-use development with a supermarket on the ground floor.

1. The site comprises two adjoining lots, each with a single dwelling and adjoining garages opening onto the street. There is no landscaping in the front yard of 651 Old South Head Road; the front yard of 649 supports lawn, a low hedge along the front boundary wall, and two Cypress trees.

1. The total area of the site is 1049.4m2. The land slopes down from the rear to the street frontage (east to west) and down from north to south. The mixed-use development is upslope.

1. The site is located on a zone boundary. The site and properties to the south are zoned R3 Medium Density in WLEP 2012. Adjoining the site to the north is a 3-4 storey mixed use development on land zoned B4 Mixed Use. The land to the rear is zoned R2 Low Density.

1. The adjoining property to the south, 647 Old South Head Road, comprises a single storey dwelling with a podium style garage opening onto the street. A 2-storey townhouse development occupies 645 Old South Head Road.

1. The mixed-use precinct is known as North Rose Bay and comprises shop top housing of 2-4 storeys; with 2-3 storeys predominating. To the south, east and southwest, the area is characterised by a mixture of dwellings, town houses and residential flat buildings up to 3 storeys; the characteristic height being 2 storeys.

Planning controls

1. The council presses relevant sections of SEPP 65, in particular, the Design quality principles of context, scale and built form in sections 9, 10 and 11 respectively.

1. WLEP 2012 applies. Residential flat buildings are permitted with consent in zone R3 - Medium Density Residential. The relevant objectives are:

To provide for the housing needs of the community within a medium density residential environment,

To provide a variety of housing types with a medium density residential environment.

1. The following development standards in WLEP apply:

4.3 Height of buildings - 12.5m

4.4 Floor space ratio - 0.9:1

1. Clause 4.6 - Exceptions to development standards applies.

1. WDCP 2012, Part C - Residential Development - subsection C2 - Multi Unit and Multi Dwelling Housing applies. The following clauses apply; the relevant numerical requirements applicable to the proposal and council's contentions are indicated.

• Clause 2.2 Site, scale and frontage
• Clause 2.3(f) Height (for R3)

Overall height 12.5m

Maximum external wall height 9.5m

Maximum number of storeys 3

• Clause 2.5 Setbacks

2.5.1 Street setbacks - consistent with predominant building line etc.

2.5.2 Side (3-4.5m) and rear (6m) setbacks; 2m deep soil landscape strip

• Clause 2.7 Building separation

For buildings up to 4 storeys:

- 12m between habitable rooms and balconies

- 9m between habitable rooms/ balconies and non habitable rooms

- 6m between non-habitable rooms

• Clause 2.13 Communal open space

15% total site area

• Clause 2.14 Private open space

Balconies - minimum area of 10m2 and minimum depth of 2.5m

• Clause 2.15 Solar access and overshadowing

Direct sunlight to north-facing windows of habitable rooms and all private open space of adjoining dwellings should not be reduced to less than 3 hours between 9.00am and 3.00pm on June 21

• Clause 2.16 Views and view sharing

Minimise view loss from adjoining properties

• Clause 2.18 Apartment size and layout

Provide a diversity of apartment sizes and layouts

• Clause 2.22 Acoustic privacy

Protect the acoustic privacy of apartments and their private open space

• Clause 2.23 Natural ventilation

At least 60% of apartments to be naturally cross-ventilated

The hearing and evidence

1. The hearing commenced on site. The Court heard from three objectors and visited their properties. The issues raised by the objectors are summarised as:

• Loss of solar access to the rear garden, rear sunroom, and north-facing windows of 647 Old South Head Road;
• Overlooking and loss of privacy - 647 Old South Head Road;
• Obstruction/loss of views from unit 7/ 653 Old South Head Road and concerns about noise and privacy; and
• Loss of views of the city from the first floor play area and bedroom of 8 Norton Street, Dover Heights, the property to the rear of the site, as well as concerns about potential vehicular access conflicts during and after construction.

1. The following experts were present at the site inspection:

• For the applicant:
• Mr G Karavanas - Town planning
• Dr R Lamb - Visual impact
• Mr S King - Shadowing/ solar access
• Mr R Dickson - Urban design
• For the respondent:
• Ms K Gordon - Town planning/ visual impact
• Ms G Morrish - Urban design

1. In the period leading up to the hearing, the experts participated in joint conferences. As a result of the joint conference involving all experts except Dr Lamb, further amendments were made to the plans. The amendments include: an additional setback from the street of the south-western portion of the building; additional landscaping; redesign of the pedestrian entry off Old South Head Road; and redesign of some units in order to reduce privacy impacts. The revised plans show 18 apartments comprising: 11 x 1 bedroom units, 5 x 2 bedroom units and 1 x 3 bedroom unit. These plans were considered during the site inspection.

1. During the course of the site inspection a number of relevant matters were discussed. The parties requested an adjournment to enable further joint discussions between the experts.

1. As a result of the final joint conference, the plans were further revised and the experts reached an agreement. The Court granted the applicant leave to rely on plans arising from the joint conference held on 8.9. 2014. The final joint report identifies the following modifications:

• A setback of 3m from the mixed-use building to the north on the portion where previously there was no setback;
• An increased setback to 3.4m from the street for the northern portion of the façade;
• Conversion of the south-western corner of unit 11 on level 2 to a balcony;
• Conversion of two north-facing one bedroom units to a 1 x 2 bedroom unit with 'privacy bay windows' off the north-facing bedrooms;
• Provision of a retractable privacy screen for the north-facing living room balcony, located beyond the rear alignment of 653 Old South Head Road;
• Provision of 'privacy bay windows' for south-facing bedroom windows;
• Removal of side balcony blades and balcony roof of unit 17 on level 3;
• Terracing of the north-eastern retaining wall to the level 1 courtyard with terracing not to exceed 1.2m in height; and
• Reducing the FSR from 1.22:1 to approximately 1.08:1.

1. In regards to council's contentions, the experts agree on the following (as summarised from the final joint report):

• Character

The modifications achieve an appropriate front and northern setback resulting in an acceptable presentation to the streetscape of Old South Head Road, and which is characteristic of the residential zoning of the property whilst creating a sense of transition in frontage alignments.

The increased setbacks enable an increase in landscaping area that will assist in reducing the visual bulk.

• Privacy

The re-orientation of the northern units and provision of 'privacy bay windows' for the bedrooms result in acceptable privacy for the dwellings to the north and south, and achieves an appropriate level of separation between all properties.

• Views

The provision of complying floor space at level 3 in any location will result in the loss of some views from 8 Norton Avenue. The experts are of the opinion that there is no more skilful design that would allow compliant floor space at that level without impacting the view. As the view is lost due to complying floor space, the additional non-complying floor space has no additional impact on views from 8 Norton Avenue. The view impact on 10 Norton Avenue is acceptable.

In regards to the view from 653 Old South Head Road, the experts agree that the deletion of the balcony blade from unit 17 will achieve an acceptable degree of view sharing.

• Visual Bulk

The increased street setback, modification of the south-western corner at level 2, and the removal of balcony blades and roof from unit 17 help reduce the visual bulk of the proposed building and result in a lower FSR.

Appropriate landscaping on the southern boundary will soften the visual bulk of the building when viewed from 647 Old South Head Road, whilst retaining solar access.

The experts agree the visual bulk is acceptable when viewed from 647 Old South Head Road.

• Shadowing

The increased setback of the south-western corner will achieve compliant levels of solar access to the front sunroom of 647 Old South Head Road. Solar access to the rear yard is acceptable. Mid-winter solar access to the north and east facing kitchen and dining room windows cannot be maintained given their location, orientation and the topography of the site. However, the design of the building and landscaping will allow solar access at the equinoxes and summer solstice.

The experts agree the proposal is acceptable from a solar access and overshadowing point of view.

• Isolation

The experts agree that proposed modifications will result in an acceptable level of amenity for the existing dwelling at 647 Old South Head Road. It is agreed that, should 647 be redeveloped, the modifications should provide sufficient privacy, solar access and building separation such that any redevelopment will not be unduly restricted. The experts note that the width of 647 is less than 15m.

Therefore, the experts agree that the proposal is consistent with the relevant planning principles for site isolation.

• Overdevelopment

Given the modifications and the reduction in FSR, the experts agree that the WLEP cl. 4.6-variation request for variation of the FSR control is well founded and the proposal does not result in overdevelopment of the site.

• Amenity for future occupants

The terracing of the north-eastern retaining wall to the level 1 courtyard will assist in reducing the sense of enclosure to that courtyard.

The provision of 'privacy bay windows' to the bedrooms will enable an outlook with reasonable light without impacting on the privacy of neighbouring buildings. Similarly, the relocation of the north facing terraces to beyond the rear alignment of 653 Old South Head Road and the installation of retractable privacy louvres will ensure an acceptable level of privacy.

The experts agree these modifications and the increased setbacks will result in an appropriate level of amenity for future residents.

• Landscaping

The increase in northern and western setbacks will provide adequate space for landscaping and will assist in responding to the building's bulk and scale. This will result in an appropriate landscape setting for the site's residential zone.

• Public interest

The experts note that the matters raised by the objectors have been addressed in the matters considered above.

1. The matter resumed in court on 9 September. The planning and urban design experts from both parties were sworn in. The Court was taken to each of the amendments made to the plans as agreed by the experts.

1. The Council's position at the conclusion of the hearing was that, having regard to the amendments to the plans and the expert evidence, there were no longer any outstanding contentions and the Council offered no further evidence or submissions in opposition to the matter.

Findings

1. While the council no longer presses any contentions, as a consequence of the appeal to the Court, in determining this matter I must take into consideration the matters listed in s 79C of the EPA Act.

1. I am satisfied on the basis of the amended plans and the agreed position of the urban design and planning experts that the proposal meets the relevant design criteria in SEPP 65. The increased front and northern setbacks provide an improved response to the residential zone and result in a scale and built form that are compatible with the character of the immediate locality.

1. The proposed development exceeds the FSR development standard in WLEP. The Floor Space Ratio Map referred to in cl. 4.4(2) prescribes an FSR of 0.9:1. The amended plans indicate an FSR of 1.08:1. In accordance with cl. 4.6(3), I have read and considered the written cl. 4.6 exception to development standards request in the original development application, which originally proposed an FSR of 1.48:1. In regards to cl. 4.6(4) I am satisfied that, in the light of the amendments agreed to by the experts and applying the proposed reduced FSR, the applicant's request has adequately addressed the matters required by cl. 4.6(3) to be demonstrated. I am also satisfied that the proposal now achieves the objectives of the FSR controls in cl. 4.4(1) and meets the objectives of the zone. Therefore, I am satisfied that consent should not be refused on the basis of the exceedence of the FSR development standard.

1. In regards to the relevant provisions in WDCP 2012, I am satisfied for the reasons articulated by the planners, that the amended proposal is sufficiently compliant and that the amenity of both the future residents of the development and occupants of adjoining properties is not unreasonably compromised. In particular, I note the increased setback on the northern side, which should address the concerns regarding the entrance to the mixed-use building to the north.

1. Similarly, the removal of the balcony blades and roof from unit 17 should enable an appropriate level of view sharing from 7/653 Old South Head Road, especially considering the approved plans for that unit. In applying the planning principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140, referred to in cl. 2.16, control (f) in WDCP 2102, the obstruction of the view of the city CBD from the first floor play area and a bedroom at 8 Norton Street is regrettable but is insufficient to warrant refusal of the development or any further modification. I note the experts' agreed opinion that the proposed development complies with the overall height limit and even a fully compliant building on the site would obstruct the view from 8 Norton Street. During the site inspection I observed the main living area to be on the ground floor and not positioned so as to take advantage of the city views. The views from the roof top terrace will be unaffected.

1. In considering the solar access to 647 Old South Head Road, I agree with the experts that the increased front setback on the south-western corner will retain solar access to the front sun room. I also agree with the experts that the location of the north-facing windows is such that any complying development is likely to obstruct direct sunlight to those windows on the winter solstice. The planting of a deciduous tree in the south-western corner will not only improve the landscape setting in the streetscape but will provide some summer shade and winter sun to 647 Old South Head Road.

1. To the extent that the submissions made by the objectors represent the public interest, I am satisfied that the amended proposal and the experts' assessment of it address those concerns.

1. Overall, I find that the additional setbacks, increased landscaping and lowering of the front wall, will improve the streetscape. The reconfiguration of the units has improved the internal amenity and achieves a mixture of apartment sizes. The amended plans show 15 apartments comprising 1 x studio, 4 x 1 bedroom units, 9 x 2 bedroom units and 1 x 3 bedroom unit. The proposed changes to the windows address the privacy issues raised by council.

Directions

1. The parties are directed to file and serve a clean copy of the plans as amended by Exhibit F, agreed conditions of consent, and a revised BASIX Certificate by close of business 12 September 2014. On receipt of those documents, Final Orders will be made in chambers and the judgment will be finalised and published.

Conclusions and orders

1. With the benefit of the site inspection, the expert evidence, receipt of the the amended plans, submissions made by the objectors, and consideration of the matters in s 79C of the EPA Act, I propose to uphold the appeal and grant conditional consent to the proposal.

1. The orders of the Court are:

(1)   The appeal is upheld.

(2)   Consent is granted to Development Application DA357/2013 for the demolition of existing dwellings, construction of a residential flat building with basement parking on Lot 9 in DP9036 and Lot 10A in DP306529 otherwise known as 649-651 Old South Head Road, Rose Bay, subject to the conditions of consent in Annexure A and the Final Agreed Plans filed on 12 September 2014.

(3)   The exhibits except 1 are returned.

__________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 16 September 2014