DKO Architecture (Aust) Pty Limited v North Sydney Council
[2010] NSWLEC 1201
•29 June 2010
Land and Environment Court
of New South Wales
CITATION: DKO Architecture (Aust) Pty Limited v North Sydney Council [2010] NSWLEC 1201 PARTIES: APPLICANT
RESPONDENT
DKO Architecture (Aust) Pty Limited
North Sydney CouncilFILE NUMBER(S): 10117 of 2010 CORAM: Tuor C KEY ISSUES: CONSENT ORDERS - DEVELOPMENT APPLICATION :- mixed use development
impact on residential amenity
SEPP 1 objections to serviced apartment floor space and heightLEGISLATION CITED: Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2001
North Sydney Development Control Plan 2002
State Environmental Planning Policy No 65 -Design Quality of Residential Development
State Environmental Planning Policy No 1 - Development StandardsDATES OF HEARING: 29 June 2010 EX TEMPORE JUDGMENT DATE: 29 June 2010 LEGAL REPRESENTATIVES: APPLICANT
Mr P Tomasetti, SC
SOLICITORS
Curwoods LawyersRESPONDENT
Mr M Causer, solicitor
SOLICITOR
Mallesons Stephen Jaques
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
10117 of 2010 DKO Architecture (Aust) Pty Limited v North Sydney Council29 June 2010
This determination was given extemporaneously
and has been edited prior to publication
JUDGMENT
1 Commissioner: This is an appeal against the refusal by North Sydney Council (council) of a development application (78/09) to demolish existing commercial buildings and construct a part 11 part 15 storey, mixed use development at 32 - 38 Atchison Street, St Leonards (site).
2 Leave was granted for the applicant to rely on amended plans (exhibit A).
3 The issues between the parties have been resolved through the amended plans, and they are seeking consent orders from the Court.
Background and Planning Controls
4 The site, its locality, the history of the application and the planning controls, are set out in the Statement of Facts and Contentions filed by council on 31 March 2009, which I adopt.
5 In summary, the site is located in the St Leonards centre within an area that is characterised by recent mixed use developments. The site is within the Mixed Use Zone under North Sydney Local Environmental Plan 2001 (NSLEP).
6 The proposed development is a mixed use development which comprises 49 residential apartments (levels 6 to 14), 59 serviced apartments (rear ground and levels 1 to 5), ground level commercial including a refreshment room and basement parking for 69 cars.
7 In 2006, the council approved a development application for the site for a mixed use development which comprised commercial and residential uses (the 2006 consent). The 2006 consent had the same external envelope and parking numbers as the current application. The principal difference between the 2006 consent and the current application is the introduction of the serviced apartment use.
8 The proposed serviced apartment use falls within the definition of “hotel”, a permissible use within the Mixed Use Zone.
9 Under NSLEP, "hotel" is defined as:
- Hotel means premises that provide accommodation consisting of rooms with self-contained suites or serviced apartments for guests, as well as facilities such as a restaurant or bar.
10 The application has been amended to specify the use of the ground floor commercial tenancy as a refreshment room, and the parties agree that the use, as proposed, is permissible with consent.
11 Other planning controls are listed in the Statement of Facts and Contentions, and include State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development and North Sydney Development Control Plan 2002 (DCP).
12 The application was recommended for approval by council officers and was refused by council on 7 September 2009 on the basis of “non-compliance with DCP provisions for minimum unit size”.
13 A s 82A review was recommended for approval by council officers and was refused by council on 1 February 2010 for reasons which principally relate to the size and amenity of the residential and serviced apartments and the number of serviced apartments. The contentions raised by council included a number of additional matters, which were not the basis for the refusal by council.
Evidence
14 In accordance with the Court's practice direction, objectors were notified of the consent orders hearing. The Court heard evidence from Ms P Quirke- Parry, a resident of the Abode Building, 599 Pacific Highway, St Leonards. Ms Quirke-Parry is the Chair of the Abode Executive Committee. She gave evidence of her own concerns and was authorised to provide evidence on behalf of the Abode Executive Committee and the Arden and Nexus buildings.
15 Ms H Smith of the Arden building, 40 - 48 Atchison Street, St Leonards, gave evidence of her concerns, and was also authorised to speak on behalf of the Arden apartments.
16 At the direction of the acting assistant Registrar, the consent orders hearing commenced in Court, and no view was undertaken or required by the parties.
17 The main concern of the objectives is the proposed serviced apartment component of the proposal, which does not comply with the floor space ratio (FSR) control in NSLEP. They considered the serviced apartments will adversely impact on their amenity through noise impacts and the antisocial behaviour of occupants. They stated that apartments in their residential buildings were being used as serviced apartments without approval, and that this has resulted in unsatisfactory impacts.
18 The residents were also concerned about the height of the proposal, which does not comply with the height control in NSLEP. They considered that the height will result in unacceptable view loss, and that the previous development approval for the site should not be relied upon. They also raised concerns about the amenity impact from the communal open space proposed on level 11.
19 The residents were concerned about the traffic impacts of the proposal. They considered that the impacts had not been adequately considered, and that the traffic assessment was based on the previous development approval. They stated that the traffic conditions in the area were already unacceptable and that the proposal will exacerbate this situation.
20 The Court heard evidence from Mr N Byrne, the architect of the proposal, who outlined the changes in the amended plans for which consent is now sought. Mr R Chambers provided expert planning evidence on behalf of the council.
21 Mr Chambers addressed the contentions raised by council and the reasons why they had been resolved between the parties.
22 Mr Chambers stated that the contentions in relation to apartment amenity (contention 2), floor to ceiling heights (contention 3), solar access and overshadowing (contention 4) have been satisfied by the amended plans and additional information.
23 The amended plans have increased the width and size of units and balconies to comply with the DCP requirements, and have increased the floor to ceiling height of the ground and first floor to facilitate future conversion. The head height of the loading dock has also been increased.
24 Contention 1 refers to the proposals non-compliance with cl 31 of NSLEP, which specifies a non-residential FSR of 0.75:1. The proposal provides a non - residential FSR of 3.7:1 as serviced apartments. The applicant has lodged an objection under State Environmental Planning Policy No 1 – Development Standards (SEPP 1).
25 The objectives of cl 31(1) provide:
- (a) ensure a diverse mix of uses in each building in the Mixed Use Zone, and
(b) minimise traffic generation from commercial development.
26 The SEPP 1 objection states that the proposal is consistent with the objectives of the control for the following reasons:
- by including serviced apartments, commercial tenancies and residential apartments, the proposal extends the diversity of uses within the building to a greater extent than if fewer commercial uses were proposed. Indeed, it increases the diversity of uses within the approved development from the approved mixed use DA (DA250/05);
- As the site is located within 300 m walking distance of St Leonards railway station, the proposal will promote the use of public transport by serviced apartment residents, permanent residents and employees of commercial tenancies, thereby reducing traffic volume generated by non-residential uses;
- The majority of the proposed non-residential GFA comprises serviced apartments (a use which is residential in nature but classified as commercial for the purposes of NSLEP 2001). As discussed in the Traffic and Parking Report, serviced apartments generate lower traffic volumes than residential apartments. The proposal therefore results in lesser traffic impacts and a development that, complied with the standard, for the incorporation of more residential space; and
- referring to Table 3.1 in the traffic report, the proposed serviced apartments generate lower traffic volumes than proposed commercial tenancies. The use of non-residential GFA for serviced apartments therefore results in lesser impacts to roads than if more GFA were occupied by commercial tenancies.
27 In Mr Chambers and council's assessment support the SEPP 1 objection as being well founded. Further, in Mr Chambers’ opinion, the lower levels of the building would provide poor residential amenity as they are overshadowed on their northern elevation. He considered that serviced apartments are a more appropriate use, which meets the objectives of the zone and the FSR control in cl 31 of NSLEP.
28 I accept Mr Chambers’ opinion and the conclusion of council's assessment that the SEPP 1 objection to cl 31 of NSLEP is well founded.
29 In relation to the concerns of the residents, I note that the serviced apartments will have a separate lobby, lift access and parking level. The serviced apartments have a 24 hour concierge, and all the serviced apartments are located on levels separate to the residential units. In these circumstances there is no reason to conclude that the impacts resulting from the unapproved use of serviced apartments in the other buildings, will also result from this development.
30 I accept Mr Chamber's opinion that the provision of serviced apartments within the St Leonards centre is consistent with the objectives of the zone, and may assist in alleviating the impact of the unapproved uses by providing approved and regulated serviced apartments to meet a clear demand.
31 Contention 5 refers to the non-compliance of the proposal with the height control in cl 29 of NSLEP. Clause 29 establishes a 40 metre maximum building height. The proposal has a maximum building height of 48.3m to the top of the roof of the rear northern part of the building. The maximum height of the front southern part of the building is 34.4m. The applicant has submitted a SEPP 1 objection. Mr Chambers and the council report accepted that the proposal met the objectives of the height control, in particular, Mr Chambers considered that the stepped form provided increased solar access to apartments at 7 - 11 Atchison Street than a complying development.
32 In Mr Chambers opinion, the view loss to units in the Abode Apartment was acceptable, given that it is no different to the view loss that would result from the 2006 approval, and that only part of the view is obscured.
33 The council report reviewed the information provided by the applicant in relation to solar access and view loss. The report accepted that the stepped form provides better solar access to 5 - 11 Atchison Street, and more units in the development with direct north aspect than a complying development. Further, it states that “no significant views from the Abode building will be affected by the proposed building, due to the increased envelope created by new buildings, and recently constructed or approved developments”.
34 Further, the report states that the proposal is “consistent with the characteristic building height for the St Leonards centre”. The report concludes that the SEPP 1 objection is well founded, and the proposal meets the objectives of the height control.
35 I accept Mr Chambers’ evidence and the conclusions of the council report that the SEPP 1 objection to cl29 of NSLEP is well founded.
36 In relation to contention 4, Mr Chambers agreed that the communal open space would receive poor solar access as it is on the southern side of the development, however, he accepted that the open space was not required under the DCP, and was not provided by other developments nearby. He considered that solar access to this area would not warrant refusal of the application. I note that a condition has been included that limits the use of this area to residents of the apartments between 7am and 10pm, which adequately addresses the concerns of the objectors about potential impacts on their amenity.
37 Mr Chambers held a similar opinion in relation to contention 7, relating to ventilation to the single aspect units. In his opinion, it had not been demonstrated that the “thermal chimneys” would adequately ventilate the central units, however, he acknowledged that these units did not rely on the thermal chimney for ventilation, and that the proposal met the BASIX requirements. He accepted that this contention would not warrant refusal of the application.
38 Mr Chambers stated that the other contentions (6, 8 and 10) were satisfied.
39 While I share Mr Chamber's concerns in relation to the solar access to the open space and cross-ventilation to the units, I accept that of themselves, these would not warrant refusal of the application.
40 In addition to the contentions raised by council, the residents were concerned about the traffic impacts of the proposal. They were of the opinion that an additional traffic assessment of the current application had not been undertaken for the serviced apartment use, and that there would be unacceptable impacts.
41 Mr Tomasetti SC, for the applicant, referred to a Traffic and Parking Report that accompanied the Statement of Environmental Effects for the application, which examined the impacts of the proposed serviced apartment use on traffic and parking. This report concluded that
- The revised development would not create any unacceptable reductions in traffic performance of the surrounding road network and there is sufficient on-site parking proposed for the development.
42 Council's traffic engineer has not raised any issues with the proposed development, other than the head room of the loading dock, which has been addressed by the amended plans.
43 For the above reasons, I am satisfied that the issues between the parties have been adequately addressed, and are now resolved. I accept that the consent orders sought by the parties can be granted.
44 By consent, the Court orders that:
- 1. The appeal be allowed.
2. The State Environmental Planing Policy No. 1 – Development Standards (SEPP 1) Objection in relation to:
- (a) the floor space ratio (FSR) standard for non-residential development in the Mixed-Use Zone; and
(b) the maximum building height standard for the Mixed Use Zone, prescribed by the North Sydney Local Environmental Plan is upheld.
- (a) commercial space with the commercial suite at the south west corner of the ground floor approved as a refreshment room;
(b) a hotel (comprising serviced apartments to be used in conjunction with the ground floor refreshment room) from ground floor to level 5; and
(c) residential apartments from levels 6 to 14, including a tower component from level 11 to level 14 such that the rear north side tower section is 4 storeys higher than the front of the development. Subject to the conditions set out in Annexure “A”.
___________________
- Annelise Tuor
Commissioner of the Court
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