Dogild Pty Ltd v Northern Beaches Council

Case •

[2016] NSWLEC 1322

•

09 August 2016

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Dogild Pty Ltd v Northern Beaches Council [2016] NSWLEC 1322
Hearing dates:22, 23 June 2016
Date of orders: 09 August 2016
Decision date: 09 August 2016
Jurisdiction:Class 1
Before: Hussey AC
Decision:

(1)   The appeal is dismissed.
(2)   Consent for application (Mod2015/0178) to modify Development Consent DA 2003/1381 in respect of increased building height and building alterations for the mixed use development at Lot 51 DP 789550, 9 The Strand DEE WHY 2099 is refused.
(3)   The exhibits may be returned except for 1, A, B, C and D.

Catchwords: Modification application: increased building height of mixed use development exceeding building height development standard, urban design, streetscape and overshadowing.
Legislation Cited:

Environmental Planning and Assessment Act 1979

 

Environmental Planning and Assessment Regulation 2000

 

State Environmental Planning Policy (Building sustainability Index: BASIX) 2004

 

State Environmental Planning Policy (Infrastructure) 2007

 

State Environmental Planning Policy No. 55 - Remediation of Land

 

State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development

 

Warringah Local Environment Plan 2011

  Warringah DCP 2011
Cases Cited:

Goldin & Anor v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 [2002] NSWLEC 75

 

Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1176

  Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June1986)
Category:Principal judgment
Parties: Doglid Pty Ltd (Applicant)
Northern Beaches Council (Respondent)
Representation:

Counsel:
Mr P Tommaseti SC (Applicant)
Mr M Staunton (Respondent)

  Solicitors:
La Rosa Izzo & Co (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):2016/163180

Judgment

Background

  1. This appeal was lodged against council’s refusal of an application to modify an approved five storey mixed use development located at Nos 9 – 11 The Strand, Dee Why. The original application in 2003 was for the demolition of existing structures on the site and the construction of a 5 – storey mixed residential and commercial development consisting of 3 shops, 15 units and 25 car parking spaces. This was subsequently modified with the 2006 approval allowing 2 shops, 12 units and 24 car spaces.

  2. The current modification, as amended, seeks a variable increase in height of the approved building up to approximately 1.8m. The increase arises from proposed modifications to floor to ceiling heights at ground floor (commercial) to achieve 3.25 m and over the residential floors above to achieve 2.7 m. There are also proposed changes to slab thicknesses and to the roof treatment.

  3. The modification application also proposes changes to the external treatment of the approved building, including:

  • Pergolas;

  • Design of balconies to Levels 1, 3 and 3 facing The Strand;

  • Changes to materials and finishes;

  • Re-design of ground floor entry for residents and retail area; and

  • Minor internal modifications.

  1. This development has had a relatively lengthy time frame and following various amendments and Land and Environment Court (NSWLEC) action, Council granted conditional consent to DA2003/1381 on 26 September 2006 for the mixed commercial and residential development consisting of 2 shops, 12 units and 24 car spaces.

  2. Subsequently a modification application was made principally against some of the conditions of consent, which were dealt with in a NSWLEC appeal. Notice of commencement was given 30 June 2011 by way of having a completed geotechnical report (Jeffery and Katauskas Pty Ltd).

  3. However on 14 July 2010 a another modification (MOD2010/0063) was approved involving:

  • Increase the shop floor space and rationalise the ground floor layout including the loading & service areas.

  • Add a second basement carpark level to increase carparking from 24 to 27 spaces (overall) and improve internal vehicular access.

  • Revise the balconies fronting The Strand and enclose the upper level balconies at the rear of the building.

  • Internal amendments to the residential units.

  • Revise exterior boundary wall finishes and façade treatments.

  1. Of relevance in the subject appeal, the plans approved under the 2010/63 Modification (this being the latest approved set of plans) did not alter the overall height of the building, but elevated the Ground Floor 150mm resulting in a commensurate reduction in the Floor to Floor height to 3.025 m (and if measured on the same basis as previously, a reduction in floor to ceiling height at Ground Floor to 2.95 m).

  2. At the time the building was originally approved (and at the time of the approved modifications), it was approved with floor to floor/roof heights (measured from finished floor to finished floor) of:

  1. 3.175 m at Ground Floor; and

  2. 2.725 m at First, Second, Third floor and

  3. 2.725 m from Fourth Floor to top of roof;

  1. According to advice provided by the applicant's architects at the time, this allowed for floor to ceiling heights of:

  • 3.1 m for the ground floor; and

  • 2.55 m at the residential levels above.

  1. At the time the building was originally approved and first modified, SEPP 65 required consideration of the Residential Flat Design Code (RFDC). The RFDC included the guideline that residential apartments have minimum floor to ceiling heights of:

  1. 3.3 m for ground level retail/business;

  2. 3.3 m for first floor level commercial/retail/residential;

  3. 2.7 m for habitable residential floors;

  4. 2.4 m for non-habitable residential floors;

  5. Part 4C indicates that where café/restaurant space is proposed, a floor to ceiling height of 4m should be provided.

  1. SEPP 65 now requires consideration of the Apartment Design Guide Part 4C which are for minimums of:

● 3.3 m for ground level retail/business;

● 4m ground floor where proposed for cafe/restaurant to allow for services;

● 3.3 m for first floor level in mixed use areas;

● 2.7 m for habitable residential floors;

● 2.4 m for non-habitable residential floors.

The site

  1. The site is located on the western side of The Strand, approximately 20m north of the intersection of The Strand and Oaks Avenue. It is situated opposite Dee Why Beach Public Reserve and the beach. The site is generally rectangular in shape, has an area of 817.2m2 with a frontage to The Strand of 16.76m. It has a 3-metre wide access handle from Oaks Avenue.

  2. Adjoining on the northern side is a 2 storey mixed commercial/residential development that fronts No. 12 The Strand. On its southern side is a 3 storey mixed commercial/residential development that fronts No.7 The Strand and Oaks Avenue (corner site) and on its western side by a 4 storey residential flat building that fronts Oaks Avenue.

  3. Vehicular access is obtained to the rear of the site from Oaks Avenue via an access handle. To the north is the northern section of the "laneway" that extends across the rear of properties between Oaks Avenue and Howard Avenue. No through legal access is available along the entire "laneway" and access is also blocked by a masonry wall between No.9 & No. 12 The Strand.

  4. The site is presently developed as a 3 storey mixed commercial/residential building, comprising 2 shops, a restaurant and 4 residential units occupying the upper two levels. The building has a nil setback to The Strand and has a large recess in the front facade. A four (4) car brick garage incorporating toilets for the commercial uses and an open concrete paved parking/loading area is located at the rear of the site. Pedestrian access to the residential units is presently obtained from The Strand via a narrow side passage on the northern side of the building.

Planning controls

  1. The following controls apply:

  1. Environmental Planning and Assessment Act 1979 ("EP&A Act");

  2. Environmental Planning and Assessment Regulation 2000;

  3. State Environmental Planning Policy No. 55 - Remediation of Land;

  4. State Environmental Planning Policy (Infrastructure) 2007;

  5. State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development; This is the prevailing control wherein the aims and objectives relevantly include:

(d)   to maximize the amenity, safety and security for the benefit of its occupants and the wider community,…

(h)   to facilitate the timely and efficient assessment of applications for development to which this Policy applies,…

  1. State Environmental Planning Policy (Building sustainability Index: BASIX) 2004; and

  2. Warringah Local Environment Plan 2011 ("WLEP 2011"). Under this instrument the site located within the Zone B2 - Local Centre. "Shop top housing" is a permitted use within the zone.

Clause 4.3   Height of buildings

(1)   The objectives of this clause are as follows:

(a)    to ensure that buildings are compatible with the height and scale of surrounding and nearby development,

(b)    to minimise visual impact, disruption of views, loss of privacy and loss of solar access,

(c)    to minimise any adverse impact of development on the scenic quality of Warringah's coastal and bush environments,

(d)    to manage the visual impact of development when viewed from public places such as parks and reserves, roads and community facilities.

(2)   The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

  1. Relevantly Clause 30 of SEPP 65 states:

30 Standards that cannot be used as grounds to refuse development consent or modification of development consent

(1)   If an application for the modification of a development consent or a development application for the carrying out of development to which this Policy applies satisfies the following design criteria, the consent authority must not refuse the application because of those matters:

(a) if the car parking for the building will be equal to, or greater than, the recommended minimum amount of car parking specified in Part 3 J of the Apartment Design Guide,

(b) if the internal area for each apartment will be equal to, or greater than, the recommended minimum internal area for the relevant apartment type specified in Part 4D of the Apartment Design Guide,

(c) if the ceiling heights for the building will be equal to, or greater than, the recommended minimum ceiling heights specified in Part 4C of the Apartment Design Guide.

Note. The Building Code of Australia specifies minimum ceiling heights for residential flat buildings.

(2)   Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to:

(a) the design quality principles, and

(b) the objectives specified in the Apartment Design Guide for the relevant design criteria.

(3)   To remove doubt:

(a)    subclause (1) does not prevent a consent authority from refusing an application in relation to a matter not specified in subclause (1), including on the basis of subclause (2), and

(b)    the design criteria specified in subclause (1) are standards to which clause 79C (2) of the Act applies

  1. Warringah DCP 2011 (WDCP) is also relevant and it relevantly contains the following controls:

● Part A.5 - Objectives

● Part A.7 - Notification

● Part B2 - Number of Storeys

● Part B7 - Front Boundary Setbacks - Land in the vicinity of The Strand

● Part B9 - Rear Boundary Setbacks

● Part D3 - Noise

● Part D6 - Access to Sunlight

● Part D7 - Views

● Part D9- Building Bulk

● Part D14-Site Facilities

● Part D18-Accessibility

● Part D20 - Safety and Security

● Part E7 - Development on land adjoining public open space

● Part F1 - Local and Neighbourhood Centres

● Appendix 1 - Car parking Requirements.

Contentions

  1. The Council identified a number of contentions, which are summarised as follows:

  1. Building height: The proposed building height is excessive and exceeds the building height control of 13m for the B2 Local Centre Zone.

  2. Overshadowing; This relates to adverse impacts on the amenity on adjoining residential apartments in terms of overshadowing and outlook.

  3. Public interest.

The evidence

  1. Detailed evidence in the form of a joint expert report (Ex B) was presented by:

• Ms D Laidlaw,

Consulting planner for the Council

• Mr B Brown,

Consulting planner for the Applicant

• Mr P Smith,

Consulting architect/urban designer for the Applicant.

Current controls

  1. The experts initially undertook a discussion about the prevailing planning framework and agreed that

  • The current version of the SEPP (in force from 17 July 2015) is the version that must be considered in this s96 modification pursuant to Section 79C(1) of the Act.

  • The relevant design guide is the Apartment Design Guide (ADG). The previous consent/approvals were subject to an earlier version of the SEPP and the Residential Flat Design Code.

  • SEPP 65 requires (inter alia) that "in determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration):

♦ the advice (if any) obtained from the design review panel, and

♦ the design quality of the development when evaluated in accordance with the design quality principles, and

♦ the Apartment Design Guide.

  • Clause 29 of SEPP 65 requires that any modification to the consent also consider:

♦ the design quality of the development when evaluated in accordance with the design quality principles, and

♦ the Apartment Design Guide.

  1. The experts also agree that there is no material difference in the numerical requirements pertaining to minimum floor to ceiling heights between the ADG as currently applies and the RFDC as applied at the date of the original approval (and the approved modifications) with the exception of the requirement for additional ceiling height for ground floor restaurant/cafes. However there are differences in the structure and wording between the RFDC and the ADG and the experts disagree as to the effect of these changes.

  2. In this regard, the Applicant submitted supporting information from BCA consultant Dix Gardner, which when considered with the architects nominated floor treatments and ceiling/services zones indicate that the ‘approved’ development would not meet ADG minimums nor (at Levels 2 and 3) BCA minimums. However the dimensions for the currently proposed modification would meet:

  • the ADG recommended minimums (with the exception of the ceiling height for cafes/restaurants); and

  • the controls of the WDCP, other than in respect of the ground floor where the WDCP Part F requires a floor to ceiling height of 3.6 m.

  1. The experts referred to the RFDC and the ADG recommendations regarding internal amenity in relation to the maximum depth of apartment buildings and the maximum distance that should be achieved from a window providing light and ventilation at the back of a room. However, neither the original approved development (and the approved s96 modifications) nor the current proposed modification adhere to the recommended building depths of either of the RFDC or ADG.

  2. Mr Brown and Smith note that Section 4D Apartment Size and layout is an additional provision in the ADG that expands on the relationship between ceiling height and the apartment design. Design Criteria 1 in Objective 4D-2 requires that the depth of the habitable rooms is a function of the ceiling height - being 2.5 x the ceiling. Figure 4D.3 indicates that for open plan layouts this can be extended to 3x the ceiling height.

  3. Ms Laidlaw says that the design forming the basis of approved modifications (MOD 2010/63) impacts adversely on the development's performance against these criteria (relative to the original approved plans) by:

  • making certain of the apartments above first floor deeper; and

  • by extending the rear of the building to the north and south side boundaries, thereby creating the situation of habitable rooms being solely dependent on a lightwell for light and ventilation (this being contrary to both the RFDC and ADG guidance).

  1. The planners note that SEPP 65 has been revised on a number of occasions since the original development application was approved. The inclusion of Clause 30 ('Standards that cannot be used as grounds to refuse development consent or modification of development consent') represents an obvious difference between the current version of SEPP 65 and the version that was applicable at the date of the original approval (and the subsequent approved modifications).

  2. Reference is also made to the National Construction Code 2015 (NCC), which would apply to the construction of the development. The Dix Gardner letter of 3 March 2016 indicates that Levels 2 and 3 of the approved development would not meet the deemed to satisfy requirements of the NCC in relation to (2.4m) ceiling height, having regard to the approved floor to floor height, the need for appropriate slab thicknesses and the floor finishes and ceiling and services zone allowances sought by the applicant as referred to above. In this regard Level 2 would be 5mm less than the 2.4m required and Level 3 would be 35mm less than the 2.4m required. Ground Floor would be 275mm greater than required, Level 1 25mm greater than required, and Level 4 55mm greater than required.

SEPP 65 application

  1. Ms Laidlaw does not consider that the addition of clause 30 lends greater weight to the 'minimum ceiling heights' of the ADG because the net effect of clause 30 is limiting, rather than facilitative: i.e. if proposed ceiling heights are at least equal to the ADG minimum then the consent authority cannot refuse consent on the grounds of (presumably 'inadequate') ceiling height, which is reinforced by reference to s79C(2) of the Act. For clarification, she does not consider that the proposed modification for 2.7 m ceiling heights is unacceptable but would prefer it if they were with no breach of the Height standard. In her opinion, the modification is unacceptable because of the breach of the Height standard and the adverse environmental and amenity impacts flowing from this.

  2. Against this, Mr Brown and Mr Smith’s proposition is that the ADG differs in its reference to ceiling heights as 'minimums' isn't strictly correct. The RFDC basically provided the same as the ADG - it states (in relation to ceiling heights): ‘These are minimums only and do not preclude higher ceilings, if desired’ which is not materially different to the ADG which states 'these minimums do not preclude higher ceilings if desired'.

  3. But they say that it does not matter that the ADG refers to its ceiling heights as 'minimums' because the effect of Clause 30 is that as far as the consent authority is concerned unless the applicant wants to provide more, they are 'maximums'. As far as any applicant is concerned they are currently able to provide greater ceiling heights if they want, and that same situation also applied under the RFDC. The difference now is that if the applicant does not want to provide greater than the minimum and the Council does, then the Council is precluded from requiring the greater than minimum ceiling heights.

  4. The joint position of Mr Brown and Mr Smith is that the ceiling height standard typically works alongside the height limit in an LEP to determine the number of storeys available on a particular site. It is the strength and consistency in which the 2.7m ceiling height has been applied by many councils across NSW and the Land & Environment Court that give this relationship the strength it has. It is often used to ensure that that an extra storey is not squeezed in the height limit. In this instance, both the applicant and the Council for whatever reason in the original consent considered that both the number of storeys and the ceiling heights could be varied. It should be noted that consent was granted early days of the SEPP 65 before many of rules of thumb had been tested and the Court had given the document the considerable weight it has today. The applicant now realises the importance and amenity provided by higher ceiling heights and in the circumstances considers it preferable to vary the height limit.

  1. Furthermore, these experts say that the generally recognised standard for floor to ceiling heights in residential developments (except for bathrooms and the like) is 2.7 m, in part because it allows for the installation of ceiling fans. Although the National Construction Code sets 2.4 m as the regulated minimum floor to ceiling height, 2.7 m is observed as being the desirable minimum whenever this is capable of being achieved. This position is recognised in the DCP in the relevant provisions concerning building height for new buildings. The DCP does not provide any conditions under which this can be varied.

Building height

  1. The threshold issue in this matter concerns the competition between the improved amenity arising from the increased internal room heights relative to the breach of the 13m height development standard and the associated internal and external impacts.

  2. In considering what weight should be given to the breach of the height standard the experts considered the urban design context on the basis that it is conventionally accepted that increased building height may be used as a tool to define street corners and this is often a desirable streetscape outcome particularly in more densely development urban areas. In fact the WDCP character statement provides:

“The corners of Howard Avenue and The Strand, however are to be strongly defined by vitue of building height and design….”

  1. However, Mr Brown and Mr Smith note that given the design of the building across Oaks Avenue (4 storeys with the top storey setback) and potential for overshadowing of the park, it is questionable whether a higher building at the corner could be justified in urban design terms.

  2. The experts agree that:

  • The proposed building would be obviously higher than the three storey building (No.7 The Strand) that is located at the corner of Oaks Avenue and The Strand.

  • It is unlikely, but not impossible, that No. 7 The Strand would be redeveloped in the short term given the limited additional development potential available under the current LEP.

  • It is quite likely that in the same short to medium term No. 11 The Strand (the building to the north of the site) would be redeveloped and its circumstances and the controls to which it would be subject would be similar to those that apply to the subject site.

  • The Strand is predominantly characterised by 3 and 4 storey buildings. Despite the 3 storey DCP control, there are buildings which are higher than this, including:

13 The Strand: 4 storeys to the front and rear and the central part has a height of 5 storeys;

16 The Strand: 4 storeys in the centre of the site;

the building on the southern corner of The Strand and Oaks Avenue: 4 storeys.

  1. Ms Laidlaw says that the circumstances of the other midblock sites are not discernibly different from those of the subject site. There is a high degree of predictability that any owner/applicant on other sites, including that site to the north, will look to what has been approved adjacent and seek the same concessions. Also, the subject site is not a corner site-where additional height could conceivably be rationalised to define the corner. In contrast this site, one lot removed, would be noticeably higher than the three storey corner building at No. 7 The Strand - making both its breach of the storeys control, as well as of the Height standard, that much more obvious. No. 7 The Strand is less likely to be redeveloped in the foreseeable future and in the circumstances this corner site will remain dominated by a higher building adjacent and therefore weakened as an urban design element.

  2. In her opinion, whilst the subject approved building at least sits within the height standard and visually closer to the height of the three storey building at No. 7 The Strand, the current modification proposal is not acceptable because:

  • It elevates the whole building so that the fifth and non- compliant storey is far more obvious,

  • The greater height would be readily perceived with the fifth storey evident certainly from vantage points south of the site, looking northwards, as demonstrated in the photomontages, and from various positions within the foreshore park and east/north east of the site. Whilst the applicants claim these views to be blocked by the Norfolk Island Pines this ignores the often significant gap between these trees and the dynamic nature of views obtained by beachside users as they move around the Park,

  • The proposal does not meet the objectives of the Height standard The increase in height does not ensure a building that is compatible with the height and scale of surrounding development, nor does it minimise visual impact when viewed from public places,

  • There is no valid justification to set this Standard aside as it is not a corner site. Instead, it is a midblock site within the predominant 3-4 storey streetscape precinct, then it is not reasonable to approve a five storey building which is non- compliant in terms of the Height Standard.

  1. Against this, both Mr Smith and Mr Brown support the application saying that maintenance of the approved ceiling heights would result in a poor amenity outcome and that on balance balance it is in the public interest to ensure that the development that is constructed with ceiling heights that provide adequate amenity. It is highly unusual that a council would be advocating for a lower level of amenity for its future residents in particular when the standard is held in such a high regard.

  2. Their support is based on:

  • The additional building height proposed is minimal in the context of the scale of the approved development and existing and future proposed developments. Existing development to the north of the site has a similar scale at the rear of the site, and also contains a 5th storey element in the middle of the site - albeit being a stair access to the roof terrace.

  • There is an inconsistency between the DCP and the approved development in that the DCP proposes 3 storeys and the approved development contains 5 storey. The number of storeys is not the subject of the modification. The number of storeys would have a greater visual impact and character impact than the numerical height of the building measured across a sloping ground plane. The number of storeys can be clearly identified from the street and surrounding areas, however Council considered that the number of storeys in the approved development was acceptable.

  • The streetscape character of The Strand is not characterised by buildings of consistent scale, character or style. At the very northern end there is an 8 storey residential flat building, in the middle there some developments have setbacks to the street, others do not. Even the more contemporary development varies considerably with the street alighments, heights and upper level setbacks.

  • The street has a gentle incline from south to north. It is expected that development to the south will have a greater height than those to the north.

  • With such substantial variation in building heights along the street it is impossible to perceive what the numerical height limit might be.

  • Typically for someone visiting The Strand, the relative heights of the top of the buildings in the centre of the site are not the focus of attention. The activity at street level, the street front building presentation and the park, beach and ocean to the east are the primary character elements in the streetscape.

Overshadowing

  1. This contention concerns the impact of overshadowing parts of the neighbouring property No 7 The Strand, which is the property to the immediate south, at the corner of The Strand and Oaks Avenue.

  2. No. 7 is a three storey mixed use development with cafe/shops at Ground Floor facing The Strand and corner of Oaks Avenue and residential apartments above. The residential apartments at the front of the building face east and those to the rear are north-south aligned, with their living spaces/balconies on the southern side, facing Oaks Avenue and bedrooms and bathrooms on the northern side, facing the site. Some of the bedrooms are used for ancillary purposes, such as study areas.

  3. The north facing windows of the apartments currently receive solar access at various times throughout the day at midwinter. The apartments most affected are to the rear (being the apartments with southern frontage to Oaks Avenue). For these apartments the approved development would remove all solar access throughout the day at midwinter, except for a small corner of the western balconies from around 3pm.

  4. The experts agree that

  • The current modification has a slightly but not materially worse impact on the east facing balconies (and a corner of a west facing balcony) at midwinter,

  • At midwinter the impact is generally the same, with the bulk of the additional shadow falling over the roof of No. 7,

  • The solar access controls of WDCP protect only the private open space of the development the subject of the proposal and of any adjoining development between 9am and 3pm at midwinter. The impact is not in contravention of this control.

  1. The experts undertook an assessment of the incremental change arising from the proposal at the Equinox, which is summarised as follows:

  • The lower east bedroom (Unit 4) window would receive 2 hours solar access with the approved development and this would be reduced to 1 hour with the proposed modification.

  • The lower middle bedroom (Unit 4) window would receive 4 hours solar access with the approved development and this would be reduced to 2 hours with the proposed modification.

  • The lower west bedroom window (Unit 3) would receive 3 hours solar access with the approved development and this would be reduced to less than 1 hour with the proposed modification.

  • The upper east bedroom window (Unit 6) would receive 2 hours solar access with the approved development and this would be reduced to 1 hour with the proposed modification.

  • The upper middle bedroom window (Unit 6) would receive 1 hour solar access with the approved development and 1 hour with the proposed modification.

  • The upper west bedroom window (Unit5) would receive 2 hours solar access with the approved development and this would be reduced to 1 hour with the proposed modification.

  1. According to Ms Laidlaw, where a variation to the height development standard is a height variation proposed, consideration of the building height objectives, namely (b) “to minimise loss of solar access” is relevant. In her opinion, whilst No 7 would be fully overshadowed at midwinter, this does not mean that solar access has no value at other times of the year. The converse is true, in her opinion, that if one has no midwinter solar access then one might at least hope for an increasing level of amenity moving towards Spring and Autumn.

  2. Ms Laidlaw’s position is that 'midwinter' is selected as the criterion in the majority of solar access controls because midwinter represents the worst impact as the altitude of the sun is lower-so if the impact is found to be reasonable at midwinter then logically it follows it should be 'better than reasonable' at other times of the year. It doesn't follow therefore that Equinox is irrelevant, but rather that, in the conventional course of events, you wouldn't need to address it because the benchmark test had already been satisfied for midwinter. Certain DCPs do, however, provide specifically for equinox assessment where the midwinter test cannot be met, and the ADG itself includes diagrams supporting the view that equinox impacts be considered.

  3. In practical terms she says that the apartments to the south, at the rear of No. 7, would (under the approved development) receive no solar access at all at midwinter but at least have opportunity for solar access moving towards and around the equinox. That solar access at equinox has already been diminished by the 2010 modification and notwithstanding the conditions then imposed to reduce bulk and shadow impact - this being an approach consistent not only with the objectives of clause 4.3 but the merit guidance of the DCP. It does seem unreasonable, in these circumstances, for a further increase in height - particularly when this includes height in excess of the Height standard -to further diminish already very limited solar access to these adjoining apartments.

  4. Against this opinion, both Mr Smith and Brown say:

● Objective 3B-2 of the ADG specifically refers to protecting solar access in midwinter to the living areas and private open space and does not nominate any minimum requirements and notes that this only has to be 'considered'.

● There is no requirement in the applicable controls/guidelines to consider the impacts of overshadowing neighbours bedrooms or any requirement to consider impact at the equinox.

● Based on the controls the impacts of the proposal are not unreasonable in relation to solar access.

● Where the DCP and ADG require assessment of overshadowing requires any assessment of overshadowing it is on June 21. This logically reflects a time when solar access is most desirable, that is, midwinter.

● It is questionable as to the benefit of measuring solar access at the equinox as a measure of amenity. It is at the equinox that typically sun shade devices are designed to begin to protect the windows from solar access to avoid overheating.

Complying building envelope

  1. In the consideration of the amenity impacts on No 7, the experts dealt with the proposals building envelope, with particular reference to the setbacks and increased height.

  2. Ms Laidlaw’s position is that a 'complying envelope' comparison has relevance as a planning analysis tool, provided it is treated with caution. She says that it is commonly accepted that any envelope derived by height, setback, landscape area and other controls is not there to be 'filled' by development but rather is there to enable massing to be moved around to achieve the best fit with a variety of planning objectives, including the minimisation of impact on neighbours.

  3. Furthermore she says that common sense has to be applied in terms of looking at how a building would fit under the sloping height plane (derived from sloping ground level), taking into account obvious functionality parameters, and what measures would need to be included to make the building 'work'. The subject proposal has always, in this regard, had a lightwell or indent along its northern and southern sides and, particularly given the current focus on internal amenity, it is almost inconceivable that this indent would be allowed to be filled in.

  4. She questions whether a good planning outcome is achieved by allowing a building to be constructed to maximum height at nil setback all along the length of the common boundary when a short distance to the south there are windows to residential apartments looking straight at what would be an extremely high and imposing structure. The merit following controls in WDCP relating to side setback and building bulk would suggest otherwise eg:

B6 Merit Assessment Side Setbacks

To ensure the building does not become visually dominant;

To ensure the scale and bulk of buildings is minimised;

To provide adequate separation between buildings to ensure a reasonable level of amenity and solar access is maintained,

Side setbacks will be determined on a merit basis and will have regard to ...amenity of surrounding properties (and) setbacks of neighbouring development.

D9 Building Bulk

Objectives...

To minimise the visual impact of development when viewed from adjoining properties...

Requirements

Side and rear setbacks are to be progressively increased as wall height increases;

Large areas of continuous wall planes are to be avoided by varying building setbacks and using appropriate techniques to provide visual relief.

  1. Accordingly, Ms Laidlaw says that the history of approvals on this site indicate that this would be unlikely to occur. The 2009 withdrawn modification DA had a wall enclosing the side boundary indent which was removed in the 2010 modification, and this later modification - including the opened up indent - was approved with conditions to further reduce the impact of bulk and overshadowing on the neighbouring development to the south, including effective reduction of height/increased setback of elements at the uppermost floor. It is noted that since it was known at the time that there would be full overshadowing at midwinter, these conditions could only have been applied to minimise shadowing impact at periods outside of midwinter.

  2. In these circumstances, and also taking into account that this is a modification application for a building approved with a particular form and massing she would place limited, if any, weight on the alternative 'complying' envelope depicted on the applicant's Equinox shadow diagrams.

  3. Alternately, both Mr Smith and Brown say that the consideration of a 'complying building' envelope is only necessary if the Court accepts Ms Laidlaw’s view that one must consider the overshadowing impacts on bedrooms at the equinox.

  4. Such approach would be contrary to the provisions of SEPP 65. In any event, it is routine in the assessment of any development that does not comply with a development standard (particularly where matters of height, FSR and setbacks are involved) to compare the proposal to a building which complies with the controls. This is because, in the vast majority of circumstances, that the impacts of a development that complies with the standards, are considered to be reasonable. The only exception, as referred to in the LEC solar access planning principle, is poor design:

"Overshadowing arising out of poor design is not acceptable, even if it satisfies numerical guidelines. The poor quality of a proposal's design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost, while reducing the impact on neighbours."

  1. Insofar as Ms Laidlaw suggested that there are alternative designs which would have less impacts than the proposed development, Mr Smith and Mr Brown do not consider them reasonable because they all result in less floor space than approved. Further, this is predominantly an application to modify the consent and the only change in this area is the increase in building height resulting from increased floor to floor levels. Notwithstanding the proposal offers design improvements to the external appearance of the building that will involve increased costs, the LEC Planning Principle notes that this should not involve 'substantial additional cost'. If anything not approving the proposed modification will result in a poor design outcome (albeit one that is already approved), as the apartment amenity is compromised by less than required ceiling heights.

Conclusions

  1. Having carefully considered the evidence, the submissions and undertaken a view, it is apparent that the threshold issue in this modification application concerns the reasonableness of allowing the increased building height to accommodate increased floor to ceiling heights relative to non – compliance with the 13m building height development standard provisions. Associated with this is achieving a reasonable balance between the competing private and public interest outcomes.

  2. With regard to the urban design considerations, I had the benefit of viewing the site and surrounding 3/4 storey buildings from various locations in The Strand and park opposite. It is the case that there is a variety of building types/heights and consequently there are opposing opinions from the experts regarding the visual impacts of the heightened building structure.

  3. Ms Laidlaw describes the likely impact as :

“what the current proposal does is elevate the whole building so that the fifth and non- compliant storey is far more obvious.”

  1. However, both Mr Smith and Mr Brown say that considering the substantial variation in neighbouring sites along the street and it is impossible to perceive what the numerical height limit might be and that the additional height proposed is minimal in the context of the approved and existing and future developments.

  1. In reconciling these opposing opinions, I note Mr Tomasetti’s submission that there are two competing numerical controls i.e. the 13m height standard and the preferred 2.7 m residential floor/ceiling heights. Accordingly he says that when reference is made to the cl 4.3 building height objectives, then the proposal satisfies objective (a) because the building scale is entirely compatible with the existing and future building form for The Strand.

  2. With regard to objective (b), the proposal now incorporates design features (skillion roof) that minimises visual impacts on the surrounding area so that there are no view and privacy losses or adverse solar impacts at the winter solstice. Consequently, his submission is that whilst there is no loss of solar access at the solstice, which is the usually accepted control, then other tests against the equinox should not be given any significant weight.

  3. Mr Staunton’s primary submission is that that the starting point is the 13 m building height development standard. This is the maximum height that the controls envisage for any building envelope on the subject site. Reference to the evidence indicates that there is substantial compliance with this height standard in the immediate neighbourhood with the exception of the “white building with staircase”, which is a much older approval.

  4. Therefore when considering the likely future character of this area, reference also has to be given to the DCP provisions, which proposes a three storey maximum height for “The Strand, Dee Why” precinct. Whilst approval has been given to the existing 5 storey consent, this was on the basis of compliance with the 13m height standard.

  5. For my consideration of this primary height issue, I note the submissions Regarding Brown C findings in Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1176 wherein he said:

43. Even though Mr Sanders appropriately addressed the breach of the height standard through the relevant objective, I am not satisfied that sufficient emphasis was given to the 27 m numerical standard. Clause 4.3(2) provides that the "height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map". The starting point for height is cl 4.3(2) and in this case, a maximum height of 27 m. While flexibility is available in the application of development standards, it does not follow in my view, that simply because the noncomplying height of a building may not able to be seen that this, in itself, justifies a breach of the height standard. The 27 m standard must have some work to do in considering the appropriate height of a building on the site.

44. In Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June1986) Cripps J, makes the following comments on a SEPP 1 objection, although I see no reason why the comments are not relevant in this case:

. . . it is now established that is not sufficient merely point to what is described as absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose.

  1. Whilst it is not necessary to deal with the equivalent cl 4.6 exception in the subject matter, nevertheless I think the principle of absence of environmental harm is relevant in the merit consideration. Obviously compliance with standard would also achieve the same “absence of environmental harm” whilst better achieving the envisaged future character of this very prominent part of Dee Why. Insofar as the non –compliance with the 13 m standard has been reduced from the original proposal nevertheless it is in the order of 1.6 – 1.8 m, which I consider is readily discernible from viewpoints to the south and from the park opposite. The top storey will be more obvious because the existing corner building at 3 – storeys is lower and provides only limited shielding, as stated by Ms Laidlaw.

  2. Accordingly, I consider Ms Laidlaw’s reference to alternative designs has merit in order to achieve a development that complies with the height standard. In this regard I recognise that the current controls prefer the increased floor/ceiling height (i.e. 2.7 m for residential) but that was the case when previous amendments were made and the Applicant elected to maintain the lower ceiling heights (and the consequential internal amenity) together with the non – complying 5 – storey design. These previous amendments have nevertheless consistently maintained the 13 m maximum height limit.

  3. The alternatives suggested by Ms Laidlaw are:

(g)    A second answer is to look at alternatives which produce a satisfactory streetscape and urban design outcome, a building that complies with the statutory Height standard, and one that produces improved internal amenity. This could be achieved in one or a combination of ways:

● Deleting the fifth floor- noting that with ADG 'compliant' floor to ceiling heights the fifth floor could not have been achieved under the 13 metre height standard;

● Scaling back the depth of apartments, so that alternative means are used to ensure satisfactory light and ventilation to the apartments;

● Removing walls to create more open plan living spaces with dual aspect, including to the lightwell;

● Setting in the rear of the building from the side boundaries, thereby removing the need for habitable rooms to rely on a lightwell and improving accessibility to daylight and ventilation, as per the originally approved plans. (This setback, as noted, was included in the approved plans in response to concerns raised by the Court appointed expert as to the development's reliance on lightwells.)

● Alternative floor and ceiling zone finishes and treatments compared to those proposed by the current architect

i)    Noting that this building's floor plans have expanded since it was originally approved they could as easily be contracted without any concern raised that what is proposed is not 'substantially the same' as approved.

  1. Insofar as there was little discussion about these alternatives because the Applicant refuses to reduce the floor space to achieve compliance with the height standard, nevertheless Ms Laidlaw says that retention of the existing consent with the lower ceilings still results in the development enjoying significant amenity in the following respects:

● All apartments will have the benefit of a highly enviable and sought after location next to the Dee Why beachfront;

● 8 of the 12 apartments (on the eastern side and including the uppermost unit) will have a very attractive eastern aspect towards Dee Why Beach and generous outdoor living areas;

● Floor to ceiling height openable glazing/doors are provided across either the full or majority of the width of all proposed living areas, leading to the afore-mentioned outdoor living spaces - a factor commented upon in the Assessment report for Mod 2010/63 in addressing the acceptability of the lower ceiling heights5;

● Of these eight units four would meet or come close to the dimensional requirement for distance/depth from windows and another two would achieve this criterion assuming that the currently proposed modification seeking to enclose part of the open plan space to create an additional bedroom (at Level 1) is deleted;

● Providing that the currently proposed dividing wall is deleted at Levels 2 and 3 and the living area is retained as an open plan space as approved the remaining four units on the western side will at least comply with the dimensional requirement for room depths from windows. These apartments will also have generous balconies.

  1. Consequently, I am satisfied to rely on the opinion of Ms Laidlaw that the non – complying height should not be approved in this matter because the resultant outcome would be a higher building that would not demonstrate reasonable compatibility with the desired future character of The Strand development controls.

  2. Closely linked with this conclusion is the evidence about the existing height of neighbouring buildings and their likely potential for development. Submissions were made concerning Lloyd J findings in Goldin & Anor v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 [2002] NSWLEC 75 wherein he stated:

31.The authorities relied upon by Mr Hale show clearly that the precedent effect of a particular proposal is a valid consideration. In Shellcove Gardens Pty Ltd v North Sydney Municipal Council, Sugerman J expressly referred to his earlier decision in Emmott, in which he corrected the misprint in the latter judgment. Sugerman J acknowledged that "if one application were granted it might prove difficult for the council to refuse others unless the circumstances were distinguishable ". In the present case there has been a finding of fact by the Senior Commissioner that there is more than a mere "chance or possibility" of such later applications.

32. In particular, the decision of the Court of Appeal in BP Australia Ltd v Campbelltown City Council is, of course, binding upon me. As noted above, that Court held that the risk of establishing a precedent is readily invokable by prospective developers of other land in the vicinity is a valid consideration.

33. The Senior Commissioner's consideration also demonstrates the aim of consistency, noted by Brennan J as a guiding policy of administrative decision-making. I have noted above the specific aims of the SREP No. 23 as including the aims of ensuring consistency under that instrument. The Senior Commissioner properly refers to the need for consistency in the following statement (at par [45]

  1. Following this authority, I am satisfied there are other nearby sites in this precinct with obvious development potential that would most probably seek the same aim of maximising floor space by utilising additional height as in the subject case, which I do not consider would be in the public interest based on the current planning controls desired future outcome.

  2. The approval of this modification would also reduce the solar access to the adjoining units in No 7 The Strand. Whilst these units have non-complying solar access at the solstice, nevertheless they currently obtain some solar access at other times, particularly the equinox. Whilst I accept this test is not always applied, nevertheless I consider it warrants consideration in the subject matter because the SEPP 65 objective “to maximise the amenity… for the benefits of its occupants and the wider community” has to be taken into account.

  3. In my assessment, the increased height diminishes solar amenity to the neighbouring property as previously stated to an extent that I do not consider reasonably satisfies this SEPP 65 objective.

  4. Likewise, I think it reasonable to take into account the WLEP Height of Building objectives, which includes “minimise visual impact,… and loss of solar access”. In my assessment the proposal is not recessive and will not minimise visual impacts. I also consider the proposal will not minimise loss of solar access, instead it increases the loss of solar access because of the non – complying height. And therefore it does not demonstrate reasonable compliance with this objective.

  5. Insofar as the DCP provisions have to be considered, it is apparent that significant discretion was allowed in approving this part 5 – storey building within the 3 – storey area but it did comply with the 13 m height standard. In this regard I note that in section B2 Number of Storeys, there is the following qualifying note:

“Note

Maximum height of buildings is determined by reference to the WLEP”.

  1. Accordingly, I think that diminished weight should be given to both Mr Smith and Mr Brown’s opinion that the increased floor to ceiling heights should now be increased to satisfy other DCP controls. In my assessment of these two controls, I think greater weight should be given to the building height development standard as submitted by Mr Staunton and I rely on Ms Laidlaw’s opinion in this regard.

  2. In summary then, I have taken into account the matters for consideration in SEPP 65 and note there is no Design Review Panel report. Based on the design quality principles, whilst I accept there is merit in the increased ceiling heights nevertheless I am satisfied that the proposed ceiling heights could be achieved in an alternate complying design.

  3. I do not consider the Applicant has made a satisfactory case to breach the 13 m building height standard. The history of the development indicates there has been a progressive increase in floor area, which has partially reduced the internal amenity of some of the units and does not satisfactorily minimise visual and amenity impacts on adjoining land uses. In the circumstances, I understand the benefit of increasing the floor to ceiling heights to the currently accepted standards but I consider this should be within the context of the 13m standard as stated by Ms Laidlaw.

  4. In balancing the competing private interests for maximising floor area and internal amenity relative to exceeding the 13 m height standard and consequently increasing visual impacts into the public domain and reducing the solar amenity for neighbouring properties, I consider that adherence to this height standard in the subject matter better serves the public interest and I rely on Ms Laidlaw’s evidence that this application should not be approved.

Court orders

  1. Accordingly the Court orders:

  1. The appeal is dismissed.

  2. Consent for application (Mod2015/0178) to modify Development Consent DA 2003/1381 in respect of increased building height and building alterations for the mixed use development at Lot 51 DP 789550, 9 The Strand DEE WHY 2099 is refused.

  3. The exhibits may be returned except for 1, A, B, C and D.

R Hussey

Acting Commissioner

Decision last updated: 09 August 2016

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