DMD Property Pty Ltd v Botany Bay City Council

[2016] NSWLEC 1144

Land and Environment Court

New South Wales

Medium Neutral Citation:	DMD Property Pty Ltd v Botany Bay City Council [2016] NSWLEC 1144
Hearing dates:	17 and 18 February 2016
Date of orders:	20 April 2016
Decision date:	20 April 2016
Jurisdiction:	Class 1
Before:	Smithson AC
Decision:	1. The appeal is upheld. 2. The section 96 modification application 14/62/03 to development application (DA 14/062) for the addition of a top storey residential unit to a mixed used building at 1144-1146 Botany Road, Botany is approved, subject to the conditions in Annexure A. 3. The exhibits, except Exhibits A, B, 4 and 5, are returned.
Catchwords:	MODIFICATION APPLICATION – top storey unit, mixed use development, height, heritage impacts, streetscape character, heritage conservation area, precedent
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings Botany Local Environmental Plan 2013
Category:	Principal judgment
Parties:	DMD Property Pty Ltd trading as Icon Constructions Group (Applicant) Botany Bay City Council (Respondent)
Representation:	Counsel: Ms S Duggan (Applicant) Solicitors: Mr V Conomos of Conomos Legal (Applicant) Mr T O’Connor of Houston Dearn O’Connor (Respondent)
File Number(s):	10910 of 2015

Judgment

1. ACTING COMMISSIONER: This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a modification application (No.14/62/03) under Section 96 (2) of development application 14/062 by Botany Bay Council (the Council) to construct a residential unit at the fifth level of a mixed use development at 1144-1146 Botany Street, Botany (the site).

2. The key issue associated with the appeal relates to the contextual fit of the fifth level unit in terms of the proposed height, and its impact on nearby heritage items, a heritage conservation area and the streetscape.

Background to application

3. Development Application No. 14/062 was granted a Deferred Commencement consent by the Council on 9 December 2014 for the construction of a five (5) storey mixed use development over two buildings at 1144-1146 Botany Road, Botany.

4. A Deferred Commencement condition required the Applicant to submit amended architectural plans deleting a top floor unit (Unit 25) and these were subsequently submitted.

5. An Operational Consent was granted on 23 February 2015. On 3 July 2015, Council approved a Section 96(1A) Application to modify the consent to delete or amend a number of conditions associated with site remediation, to amend the description of the development to correctly refer to 24 residential units and 63 car parking spaces, and to reference the modification application.

6. On 2 April 2015, Council received a Section 96(2) application to re-instate an additional one bedroom residential unit to Level 5 at the eastern elevation, albeit of a different form to the unit proposed in the original application.

7. The modification (Revision G plan) the subject of the modification application and the appeal proposed a fifth level unit different from that proposed in the original DA in that it was reduced in size from 103m² to 88m², setback by up to a further 1.2m from Botany Road resulting in a setback ranging from 7.6m to 9.2m, and a balcony reduced in size resulting in a balustrade setback of the balcony to the street ranging from 5m to 7.2m. The proposed setback from Botany Road was based on determining sight lines from the footpath on Botany Road directly opposite the site so that the unit would not be visible from this location. To reconfigure the building to accommodate the additional unit, the height of the lift overrun was also proposed to be increased resulting in a 200mm increase to the approved height of the overall development.

8. On 19 May 2015, the applicant requested further amendments to the modification application which, in addition to proposing a residential unit to Level 5, sought also to delete an electricity substation and landscape garden beds and enclose this area to accommodate garbage storage areas, provide a car wash bay and additional storage areas, and undertake a minor re-configuration of the ground floor retail/commercial area resulting in a reduction in floor area.

9. On 6 November 2015, Council received a Section 96(1A) application to separately obtain approval to the minor modifications associated with the new garbage storage area, car wash bay and storage areas and ground floor reconfiguration. Therefore, the Section 96(2) the subject of the appeal (modification application No. 14/62/03) is only dealing with the additional top floor unit and the increase in the height of the lift overrun.

10. The Section 96(2) application was placed on public notification for 14 days in July 2015. Two (2) submissions opposing the modification were received.

11. On 16 October 2015, DMD Property Pty Ltd trading as Icon Construction Group (the applicant) filed a Class 1 Appeal against the Council's deemed refusal of the Section 96(2) application.

12. The matter was subject to a conciliation conference under s34 of the Act. An agreement could not be reached and the conference was terminated. However, arising from this conference, the applicant submitted an ‘alternative scheme’ (the Revision H plan) showing a smaller unit of 77m² with a smaller balcony and requested that the Court consider this an alternative option should the Court not support the modification as proposed in the Revision G plan.

The Site and Locality

13. The subject site is located on the western side of Botany Road with a secondary frontage to Chegwyn Street.

14. It comprises Lot I in DP 964696 and Lot 1 in DP 956244. The site is regular in shape with a frontage of 23.835 metres to both Botany Road and Chegwyn Street, a depth of 61.265 metres and a total site area of 1,411m².

15. At the time of lodging the appeal, the site was vacant, with construction of the approved development underway by the time of the hearing.

16. The site fronts Botany’s main commercial street (Botany Road) which also forms the majority of the Botany Township Heritage Conservation Area (HCA). The HCA extends from north of the site at the intersection of Hale Street and Botany Road, south along Botany Road past the site to the intersection of Botany Road with Hale Street/Hastings Street.

17. There are numerous items of local heritage within the HCA. Directly opposite the site on the other side of Botany Road is the Botany Town Hall, which is of a 3 storey height form and a listed heritage item. To the south along Botany Road in relatively close proximity to the site are a row of single storey heritage listed workers cottages.

18. Adjoining the Town Hall to the north is the former Botany RSL, now converted into a 4 storey mixed use development.

19. The Council's public car park and public amenities building are located to the north of the site and are accessible from both Botany Road and Chegwyn Street.

20. The Botany shops are concentrated at the intersection of Botany Road and Banksia Street whilst to the west on Chegwyn Street are industrial and warehouse buildings. The development in the immediate vicinity is generally of a two storey commercial character with some residential uses at first floor level. Development further to the east comprises low to medium density residential dwellings.

Statutory Controls

21. The site is subject to the provisions of the Botany Local Environmental Plan 2013 (the LEP). The site is zoned B2 - Local Centre and the proposed use is permissible in that zone.

22. Under the LEP, the surrounding lands to the north, east, south and west are also zoned B2 - Local Centre. The B7 - Business Park zone is located further west in Underwood Avenue.

23. As previously indicated, the site is situated within the Botany Township Heritage Conservation Area. This is listed as Conservation Area C2 in Schedule 5 of the LEP.

24. Relevant LEP controls include:

1. Clause 5.10(5) - Heritage Conservation;

2. Clause 6.9 - Development in areas subject to aircraft noise.

25. The following provisions of the Botany Development Control Plan 2013 (the DCP) are also of relevance:

1. Part 3B - Heritage;

2. Part 4C - Residential Flat Buildings;

3. Part 5 - Business Centres; and

4. Part 8 - Character Precincts.

26. The design provisions of State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Buildings (SEPP65) also apply.

Resident objections

27. At the commencement of the hearing on site, the Court heard evidence from a resident of Botany Street. The resident was concerned that the application had been lodged as a section 96 modification therefore justification for the height breach under clause 4.6 of the LEP was not required, that if the additional height was approved it would create an undesirable precedent, and that the site was in close proximity to heritage items and the proposed modification would have an adverse impact on these items and the streetscape.

Evidence

28. The Court heard expert evidence from:

For the applicant

Mr Matthew Devlin, town planner

Mr Don Wallace, heritage consultant

For the Council

Ms Kate Bartlett, town planner

Mr David Logan, heritage consultant.

Issues in Contention

29. The grounds for refusal were given by the Council to be:

1. Height

2. Heritage

3. Streetscape Character

4. Bulk and Density

5. SEPP 65 Design Quality principles in terms of context and scale.

30. The Council contended that the development as proposed to be modified failed to satisfy the following requirements:

1. The objectives of Clause 4.3 of the LEP in that the proposed additional top floor unit necessitates an additional 200mm height to the lift overrun which would be visible from both the north and south approaches. The proposal would therefore create visual impact in the locality, be inconsistent with the desired future character of the locality and dominate the skyline when viewed from the public domain.

2. Objectives and provisions of Clause 5.10 of the LEP in that the proposal has an adverse effect on the heritage significance of the Botany Township HCA and heritage items in the vicinity; and

3. The DCP in particular at Part 3B.7 - Development in the Vicinity of Heritage Items or Heritage Conservation Areas and Part 5.2.2.7 - Botany Local Centre in terms of the objectives and controls relating to height, heritage streetscape and desired future character.

31. The Council was of the view that the proposed additional top floor unit would not be compatible with the heritage significance of the HCA due to its scale form and character.

32. In the Council’s view, the proposed modification to include an additional top floor unit did not respond to the predominant and characteristic heights of buildings in the neighbourhood or the streetscape arguing that the proposed modification failed to satisfy DCP requirements relating to the desired future character, visual and pedestrian amenity and design excellence, as it would result in inappropriate bulk, scale and massing.

33. In particular, the Council was of the view that the proposed additional top floor unit would be visually dominant relative to the prevailing 1-2 storey scale of development in the vicinity.

34. In summary, the main concern of the Council related to the heritage impacts of the development arising from the non-compliance with the 14m height control. The Council considered that the breach of the 2 storey street wall height required under Part 5.2.7 of the DCP, along with the increased height of the lift overrun, would have an adverse visual impact on the locality.

35. In this regard, the Council did not support the proposed modification based on heritage advice that its visual impact on the locality as viewed along Botany Road was unacceptable.

36. At the commencement of the hearing, the site was viewed from a number of vantage points along Botany Road and elsewhere within the HCA. The site relative to heritage items was also noted and a visual impact assessment was provided.

37. The applicant considered that the additional unit would not be highly visible from Botany Road or any location within the HCA arguing that:

1. with the exception of the 200mm lift overrun which was necessary for the lift to operate, the height sought, at between 15.6m to 15.97m, whilst a non-compliance with the DCP 14m control, was still within (and was in fact less than) the overall height of the development that the Council had already approved;

2. the site is situated between a Council car park and an industrial building so there are no adverse amenity impacts on neighbours;

3. the setbacks proposed ensures limited visibility of the additional unit from Botany Road;

4. the unit would be obscured from views along Botany Road to the north and south by awnings, buildings and trees; and

5. future redevelopment of the site to the south and the Council car park would likely further obscure any views of the unit from Botany Road.

38. The planning experts agreed the proposal complied with the FSR controls, only exceeded the approved height by 200mm for the lift overrun, and would not have any adverse impacts in terms of privacy, overshadowing or view loss but that it would be visible from parts of the public domain.

39. The planning experts also agreed that views to the proposed unit would be partially filtered from the north and Edward Street by existing trees in front of the Council car park, albeit that there was no guarantee the trees would remain.

40. Ms Bartlett argued that the approved development had already been granted concessions to the required standards and the modification was seeking even further concessions. Furthermore, the approved height non compliance was at the rear of the site not the ‘sensitive’ Botany Road frontage and that the lift overrun should be capable of being accommodated within the maximum height already approved. She was also concerned that approval to the additional ‘storey’ would set an undesirable precedent being the first of a number of sites likely to be developed in the area. In her view, the Botany Town Centre, particularly to the north of the site, exhibited a strong existing 2 storey streetscape character and had a desired future character of 4 storeys but with a 2 storey street height limit to reflect the existing streetscape.

41. Mr Devlin argued that the approved street wall height is unchanged by this application and is not a relevant consideration for this appeal. He disagreed with the Council that development in the Botany Town Centre was uniform considering it was an eclectic mix of scales, height and age, and that the proposal was not inconsistent with this character. He believed the impact of the modification would be imperceptible.

42. Mr Devlin further argued that the precedent for a fifth level and development greater than 2 storey street level in Botany Road in the HCA had already been set by the approved development on the site and the RSL club opposite the site and next to the Town Hall albeit conceding that the RSL development was approved prior to the existing DCP controls.

43. The applicant stressed that the Council has already approved the development of the site at a height of 16.7m well in excess of the maximum permitted by the DCP of 14m arguing that the proposed unit was within this approved height and the lift overrun was only 200mm higher and advising that the increase in the height of the lift overrun was now required irrespective of whether the additional unit was approved or not, and was a negligible height increase in an overall building height of over 16.5m.

44. The applicant also argued that, as the Council had already approved a fifth level on the site, albeit to the Chegwin Street frontage, no precedent would be created by another unit at the same level and it was not appropriate for the appeal to revisit the appropriateness of what had already been approved. Furthermore, the unit proposed was not a re-introduction of the unit deleted by the Council in the original consent but was smaller and further setback to minimise any adverse impacts to the extent that they were negligible.

45. The heritage experts did not agree on the acceptability of the visual impact of the proposed modification in terms of its heritage context. They did agree that the Town Hall was the heritage focal point being opposite the site.

46. Mr Logan was concerned that part of the proposed unit could be seen from the front entry to the Town Hall and a fifth level to Botany Road would challenge the prominence of the Town Hall as an important heritage item and focal point being directly opposite it. He accepted that the proposed setback to the north would partly reduce the visibility of the unit but still considered it would dominate a predominantly 1-2 storey streetscape adversely impacting the visual setting of heritage items particularly the Town Hall and the heritage listed single storey cottages to the south.

47. Mr Logan further argued that the already approved development on the site would be visually dominant behind the Town Hall in views from the western end of Edward Street and that the additional unit would exacerbate this and increase the sense of visual dominance by the development of the Town Hall.

48. It was agreed by the parties that the modification would not be visible from directly opposite the site but would be partially seen from certain specific locations to the north and south within the HCA. The applicant argued these were distant and peripheral views in an eclectic streetscape noting that the Council had already allowed the height of development on the site to be exceeded finding the impact acceptable. With the exception of the 200mm lift overrun exceedance, the applicant argued, the modification was not increasing either the absolute height or the number of storeys already approved.

49. The applicant argued that it is not whether the modifications could be seen at all, but whether or not what could be seen would have an adverse impact or unacceptably diminish the heritage values of nearby heritage items or the HCA.

50. Mr Wallace argued that any heritage impacts associated with the additional unit would be minor and acceptable and that there would be no adverse impact on the streetscape, the desired future character of the locality or the integrity of the Botany Township HCA. He noted that the development was not as tall as the RSL development on the opposite side of the road and that the Botany Road streetscape was heterogeneous in scale and form with intrusive infill evident of variable quality. He considered that, as the proposed modification would not affect the scale or built form of the approved development, no adverse heritage impacts arise. He also considered the visual impact to be peripheral and marginal.

51. Some discussion took place on the screening effect of the trees (predominantly eucalypts) adjoining the front of the site in front of the Council car park, noting there was mixture of evergreen and deciduous. It was agreed that the trees would screen the unit at least in part particularly from the north and that the Council would seek to have the trees retained. However, Mr Logan argued that without the trees, the building would be very visible although he did concede a redevelopment of the Council car park could result in further screening opportunities.

52. All experts agreed that the adjoining sites would likely be redeveloped, could be developed to at least 14m height and could potentially screen upper levels of development on the site. However, the Council argued there was no certainty this would occur or what upper level setbacks would be. Mr Logan and Ms Bartlett argued that the intent of the DCP was that height above 2 storeys in Botany Road should be setback but the applicant argued this was not what the Council had already approved for the site.

53. Ultimately the Council accepted that the 200m height increase sought to accommodate the lift overrun would not be determinative in the appeal. It was the visual impact of the unit on heritage items and the HCA, and the precedent of a five level height to Botany Road, that remained of concern.

38. The applicant argued that the impacts from the modifications relative to what had already approved were insignificant and had been designed so that the additional unit would be well setback from Botany Road and within the approved building height for the development, and therefore could not be said to have adverse detrimental impacts on the HCA, nearby heritage items or the streetscape.

39. In terms of the provisions of SEPP 65, the Council argued that the proposed development failed to satisfy the objectives and requirements of Part 2 Design Quality Principles, particularly those principles relating to:

1. Context - As the proposal did not respond and contribute to its context, which is of a low scale commercial nature on Botany Road and low scale nature on Chegwyn Street and did not respond to the desired future character as stated in planning and design policies – considering the development, when viewed from Botany Road, to be unacceptable.

2. Scale - The proposal did not provide an appropriate scale in terms of bulk and massing that was commensurate with the scale of the street and the surrounding development within the Botany Local Centre.

56. The applicant stated that these were the same arguments used to refuse the modification on heritage grounds arguing that the modifications were minor and complied with the FSR and, when considered in the context of the development already approved for the site, added insignificant bulk, massing and scale being largely not discernible from what has already been approved when viewed from the public domain.

57. Ms Duggan, counsel for the applicant, argued that both of the Council’s experts disagreed with the approval the Council had already granted for the overall development, and were revisiting their objections to this through this appeal rather than accepting the minimal additional impact the proposed modification would have. In her view, what has already been approved forms part of the context of what is now proposed and the modification needed to be considered in that context.

Findings

58. In essence the argument came down to the visual impact of the proposal in a heritage context and the precedent concerns in terms of the requested modification.

59. From my viewing of the site from various vantage points within the Heritage Conservation Area, and my review of the montages provided, I was not convinced that the modification sought would be significantly discernible from what has already been approved.

60. In this regard I accept the applicant’s argument that the visual impact arising from the modification is not significant relative to the approved development on the site. The increase in height of the lift is only 200mm in a five level building and the proposed unit has been setback from Botany Road and contained within the approved building height so as to minimise and, in my view, remove any potential adverse impacts.

61. I also agree with the applicant that there is no single predominant and characteristic height of buildings in the Botany Road Town Centre. Furthermore, the Council has already determined the acceptability of a five level building with upper level setbacks on this site and the proposed unit is substantially setback from Botany Road by at least 7.2m and up to in excess of 9m.

62. I therefore cannot accept that there are significant impacts on the heritage values of the HCA or heritage items in the vicinity, an opinion also held by the Council’s planning expert if not the heritage expert.

63. The Council’s heritage expert was clearly concerned with the visual dominance of the approved development relative to the Town Hall, the workers cottages and the HCA however, the appeal relates to a modification that does not materially change this dominance. Whilst the unit may be partially visible in passing from a number of places in the HCA I do not accept that it of itself has an adverse impact when viewed in the context of the approved development.

64. The streetscape is not homogenous and the modification is not out of character with what has already been approved for the site and therefore with a development the Council considers to be acceptable in terms of its height and general form. By setting the unit behind the sightlines of what can be viewed from the opposite site of Botany Road opposite the site, I do not consider the modification will undermine Council’s general objectives for future development in Botany Road nor dominate the visual setting of the Town Hall.

65. I accept that development on Botany Road is primarily 1-2 storeys but this is not the desired future height reflected in the height controls for the area or recently approved development. As previously re-iterated, the Council has already approved a fifth level to this development and the proposed unit has a significant setback from Botany Road and will not be visually dominant when viewed from Botany Road. The 200mm additional height required for the lift overrun is a minor variation to this approved height and is in a location where its impacts would not be significant, a point that the Council accepted.

66. I also note that the parties agree that the adjoining sites are likely to be redeveloped which would further screen the modification as would the trees. The trees not only play a significant screening role but are contributory elements in the streetscape which should be retained if possible irrespective of this modification.

67. In terms of precedent, this has already been established by the Council in approving a development significantly higher than the DCP allows on the site and the modification proposal is not out of context with the height of development opposite on the RSL site or of the Town Hall.

68. I therefore find the modification sought to be acceptable and the development proposed by the modification to be substantially the same as the development approved and in keeping with the intent of development on the site in terms of overall height and upper level setbacks.

Orders

69. The orders of the Court are:

1. The appeal is upheld.

2. The section 96 modification application 14/62/03 to development application (DA 14/062) for the addition of a top storey residential unit to a mixed used building at 1144-1146 Botany Road, Botany is approved, subject to the conditions in Annexure A.

3. The exhibits, except Exhibits A, B, 4 and 5, are returned.

__________________________

Jenny Smithson

Acting Commissioner of the Court

10910 of 2015 - Annexure A (207 KB, pdf)

Decision last updated: 20 April 2016