Epson Property Group Pty Ltd v Council of the City of Sydney
[2015] NSWLEC 1063
•19 February 2015
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New South Wales |
Case Name: | Epson Property Group Pty Ltd v Council of the City of Sydney |
Medium Neutral Citation: | [2015] NSWLEC 1063 |
Hearing Date(s): | 19 February 2015 |
Date of Orders: | 19 February 2015 |
Decision Date: | 19 February 2015 |
Jurisdiction: | Class 1 |
Before: | Hussey AC |
Decision: | Consent orders |
Catchwords: | Development application: Alterations to a mixed use development, excessive height, FSR and overdevelopment of the site. |
Legislation Cited: | Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 55-Remediation of Land |
Category: | Principal judgment |
Parties: | Epson Property Group Pty Ltd (Applicant) |
Representation: | Counsel: |
File Number(s): | 10553 of 2014 |
EXTEMPORE JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
This appeal was lodged against the deemed refusal of a development application for alterations and additions to an approved 6 storey mixed use development located at 1 – 3 Dunning Ave, Roseberry.
The subject application follows an existing development consent for this property, which was granted on 24 January 2014 (base building consent). The base building consent approved the demolition of existing buildings and the construction of a 6 – storey building containing 54 residential apartments, 300 sqm of retail floor area, 2 levels of basement car parking and site landscaping.
The current application initially proposed:
·An additional 7th storey
·Alterations to the 6th floor to provide an additional 2 units
·An increase of 4 additional units and 3 extra parking spaces.
However after further discussions between the parties, the applicant agreed to significant amendments which:
(a)Deleted the proposed 7th storey, thereby satisfying the building height control.]
(b)Amending the 6th floor layout to achieve 1 additional unit overall
(c)Providing 1 additional car space.
These amendments have resulted in the parties agreement to consent orders, which are supported by a statement from Mr A. Thomas, Councils Executive Manager Strategic Planning.
Based on the details in the Statement of Facts and Contentions, I note the following details.
The site
The land is identified as Lot 1 DP 136023, 1 – 3 Dunning Ave, Rosebery (“Site”).
It is located on the southern side of Epsom Rd and has three street frontages, Dunning Ave to the west, Epsom Rd to the north and Mentmore Ave to the east. The southern boundary is irregular with a step mid-way and there are splayed boundary corners to the north-east and north-west.
The Site has an area of 2495sqm and the land has a slight fall of approximately 1m from the higher eastern boundary to the lower western boundary.
The Site is within the Green Square Locality and more specifically the Beaconsfield neighbourhood. The character of the Beaconsfield neighbourhood is a mix of low density residential, medium use residential flat buildings and low scale warehousing used for commercial and industrial purposes.
Planning Controls
The following planning legislation, environmental planning instruments, development control plan, policies and planning agreement apply to the proposal.
(a)Environmental Planning and Assessment Act 1979, as amended;
(b)State Environmental Planning Policy No 55-Remediation of Land;
(c)State Environmental Planning Policy No 65 Design Quality of Residential Flat Developments ("SEPP 65”);
(d)State Environmental Planning Policy 70 Affordable Housing (Revised Schemes);
(e)State Environmental Planning Policy (Infrastructure) 2007;
(f)State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004;
(g)Sydney Local Environmental Plan 2012 (“SLEP 2012”)
(h)Sydney Development Control Plan (“SDCP 2012”);
The City of Sydney Development Contributions Plan 2006 applies and there is a Planning Agreement between the Council of the City and Epsom Property Group Pty Limited (executed on 27 March 2014).
Contentions
The original contentions covered:
(1)The unacceptability of the proposed additional storey being considered as an unreasonable and an unnecessary contravention of the height of buildings development standard and height in storey control.
(2)The proposed additional storey resulting in an unreasonable and unnecessary contravention of the floor space ratio (FSR) standard.
(3)The proposed additional storey representing an overdevelopment of the site and is not in the public interest
Assessment
I accept that the final amendment proposed for reducing the height of the building eliminates the proposed 7 storey and represents a significant reduction in the scale of the proposal and its development outcome.
In assessing the overall merits of the application I have considered the various expert reports, and in particular my attention was directed to the joint planning and urban design report (Exhibit C) where as Ms G. Morrish – Council’s urban design expert expressed the following opinion.
Councils concern seems to centre primarily on the additional floor (7th storey) which also contains much of the additional FSR. Whilst she considers that the partial 7th floor is not an issue if the Court was concerned with the noncompliance with the maximum height and number of storeys then removal of the top floor would address this. The resulting additional floor space on the 6th floor is very minor and not discernible in a meaningful way from the public domain. It would then see a very nominal noncompliance in terms of FSR i.e. 0.036:1 for the additional massing on the 5th level (6th floor) which is located to the rear of the site with no impacts.
The subsequent amendment to reduce the height of the proposal and eliminate the additional 7th storey units has addressed the issue Contention 1.
Mr Thomas confirmed this in his statement as follows:
·The proposal in the further amended plans complies with the 22 m height development standard in SLEP 2012, the 6 storey height control in SDCP 2012, and the maximum parking development standard.
·The further amended plans also maintain the 3 bedroom 9% dwelling mix as per the existing development consent.
·The Respondent’s only remaining contention related to a breach of the FSR control in SLEP 2012. The amended proposal, now represents only a 2% departure from the FSR development standard, which in the circumstances the Respondent is satisfied does not warrant refusal of the proposal.
The Applicant dealt with this departure by way of a cl 4.6 Exceptions to Development Standards statement, which I have carefully considered.
As noted the departure in the FSR is in the order of 2% and the statement supports the variation on the basis that:
·Satisfies the relevant objectives of the FSR standard;
·Satisfies the objectives of the B4 Mixed zone under Sydney LEP 2012;
·Is consistent with relevant State and Regional Planning Policies;
·Provides for a better planning outcome;
·Has sufficient environmental planning grounds to permit the variation; and
·Is in the public interest
The clause 4.6 variation addresses the objectives of the F.S.R cl in terms of objectives (a) – (d). Accordingly I am satisfied to rely on the following assessment.
The subject site falls within the Green Square Urban Strategy area and also lies within the Beaconsfield locality which is undergoing a transition with underdeveloped warehousing developments being replaced with quality, high density mixed use developments.
The proposed density on the subject site is entirely appropriate as it provides for a built form which will sit comfortably in it’s context and it is compatible with the new mixed use developments to the east and surrounding low density developments.
Given the recessed nature of the sixth floor level the proposal will generally retain a 6 storey appearance along its street frontages thereby creating a suitable streetscape presentation. The substantially reduced nature of the additional floor level ensures that it will not be visible when directly in-front of the mixed use development and in longer oblique views it will be viewed against the greater bulk of the approved development.
The statement also addresses the consistency of the proposal with the following B4 Mixed Use Zone objectives.
·To provide a mixture of compatible land uses
·To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling
·To ensure uses support the viability of centres.
The assessment is that:
The subject site is zoned B4 mixed use under the Sydney LEP 2012. The proposed residential component (associated with the approved mixed use development) is permissible in this zone and the proposed FSR does not raise any inconsistency with the zone objectives.
The proposed residential accommodation to level 5 and 6 are compatible with the surrounding land uses and will provide for a variety of housing needs. The residential units will be accessible to Green Square train station and bus routes along Botany Road while the surrounding pedestrian and cycleway will promote walking and cycling by future occupants.
The proposal is considered to satisfy the objectives of the zone as the bulk and scale of the mixed use development will be compatible with the eastern neighbours and achieves and appropriate transition with the surrounding lower density developments. The FSR variation will not be detrimental to or dominate the appearance of the development given its substantially recessed nature. The proposed built form is contextually appropriate and will achieve a suitable streetscape appearance with positive urban design and amenity outcomes (both internally and externally). The new residential units on the subject site will also support the viability of surrounding retail/commercial uses whilst future residents will have access to various public transport services. Therefore the proposal and its associated FSR variation will accord with the objectives of this zone.
In the absence of any contrary submission I accept that the variation satisfies the zone objectives.
With aspect to the planning outcome, the statement provided that the minor exceedance of the FSR standard would result with better planning outcome because the departure from the FSR control is associated with the additional FSR to the rear of the 5th floor and the new partial 6th floor of residential accommodation which provides 2 additional 3-bedroom units. The additional units will achieve a high standard of accommodation given they accord with minimum area requirements, achieve sufficient ventilation and solar access and provide private open space areas for the enjoyment of future occupants. The proposal seeks to increase the density of the site which is located in a convenient location close to various uses and bus services which is a preferred planning outcome.
According to the statement, the overall variation with the FSR control allows for a better planning outcome while it minimises the impacts to the surrounding properties and ensures for an appropriate bulk and scale to the public realm.
Furthermore, the Statement supports the variation on the basis that the FSR variation is considered to be in public interest, given the proposal introduces additional high quality residential units which achieve a high level of internal amenity and make efficient use of the site which are accessible to various uses and public transport. The appropriate transition of the proposal along Epsom Road and lack of external amenity impacts further demonstrates that the application and its associated bulk and scale are in the public interest. It is also noted that no objections have been raised to the proposal.
Consequently, I am satisfied that the cl 4.6 exception to the FSR development standard is well founded and strict compliance is necessary and unreasonable in the circumstances.
Conclusion:
Having considered the evidence and submissions I am satisfied that the amended proposal reasonably satisfies the relevant controls to merit conditional consent and in this regard I rely on the evidence of Mr Thomas and supporting submissions.
With regard to the cl 2.3 LEP 2012 zone objectives, particularly cl 2.3 (2), I have considered the evidence and submissions regarding these objectives and I consider that they are satisfied to enable the following consent orders to be made.
Consent Orders:
The Court makes the following consent orders:
(1)The applicant is granted leave to rely on the amended drawings identified in conditions (1)(a) of Annexure A.
(2)The appeal is upheld.
(3)Development consent is granted to Development Application D/2014/731 (as amended) subject to conditions annexed and marked “Annexure A”
(4)The exhibits be returned except for A, B, 1 and 2.
R Hussey
Acting Commissioner
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