Executive Central Property Group Pty Limited v Woollahra Council
[2011] NSWLEC 1290
•21 July 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Executive Central Property Group Pty Limited v Woollahra Council [2011] NSWLEC 1290 Hearing dates: 21 July 2011 Decision date: 21 July 2011 Jurisdiction: Class 1 Before: Murrell C Decision: (1)The appeal in respect of the premises known as 76 Oxford Street, Paddington is upheld.
(2)The Court grants leave to the amended plans and the applicant is to pay the respondent's costs in the quantum of $2,000.
(3)The State Environmental Planning Policy No. 1 objections, to vary the height and the floor space ratio as contained in the Woollahra Local Environmental Plan, are allowed.
(4)The development application submitted to Woollahra Council for alterations and additions is granted approval, subject to the conditions contained in annexure A.
(5)The exhibits are returned to the parties with the exception of exhibits C, B, J and 6.
Catchwords: APPEAL - Alterations and additions to commercial premises, impacts on residential area - noise and privacy; SEPP 1 variations to height and floor space ratio standards. Legislation Cited: Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan
State Environmental Planning PolicyCases Cited: Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Category: Principal judgment Parties: Executive Central Property Group Pty Limited (Applicant)
Woollahra Council (Respondent)Representation: Counsel
Mr M Staunton, Barrister (Applicant)
Mr S Patterson, solicitor (Respondent)
Solicitors
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 10328 of 2011
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the council's refusal of a development application for alterations and additions to the commercial premises known as 76 Oxford Street, Paddington.
By way of background, the subject site has access from Kidman Lane and the historic Kidman Steps adjoin the side boundary with access from Oxford Street. Hopewell Lane is at the rear of the premises, the full ownership of which is not necessary to conclude on, as the plans have been amended such that the access to the grease trap is contained on-site.
The applicant in these proceedings is seeking the construction of a basement floor level. As seen on the view today, the basement level currently has access to Kidman Lane and it is proposed that this be a new commercial area with the refurbishment of the subject building. It is also proposed that there be an additional 30 sq m in total of floor space added to the subject building and as such under the relevant controls, that is the Woollahra LEP, a State Environmental Planning Policy 1 objection to vary the floor space ratio is required. Similarly under the same LEP, a SEPP 1 is required to vary the height control.
As often occurs in matters that come before this Court, there have been amendments made to the proposed development application. The Court granted leave for amended plans today and the applicant has agreed under s 97B of the Act to pay the respondent's costs.
The Court has the benefit of hearing from experts in this matter, and I also state for the record that the experts were requested to further confer on the site view with the benefit of hearing from the resident objectors.
The applicant proffered further amendments and as such those further amendments have been discussed between the experts in particular with respect to the terrace at the upper level. The terrace at the upper level has been reduced in size from 13 sq m to some useable area of 4 sq m. The applicant has proposed planter boxes around the upper terrace and the evidence of the experts is that in their assessment, having regard to the relationship with adjoining properties, in particular the residential properties that the separation distances and the size of the terrace together with the hours of operation imposed in the conditions, would not lead to adverse residential amenity impacts in terms of either visual privacy or acoustic privacy.
On returning to Court today, I heard from a number of resident objectors and their concerns are about the terrace on the upper level and the potential for impacts on the residential area. The residents also expressed concern about the "creep effect" of commercial development closer to the residential area and the need to have regard to a buffer with the residential zone. They also expressed concern about the future use of the premises, the future use of the premises, and the impact that it would have on the residential amenity on the area.
The experts agree that the proposed development, with the conditions and the amendments made to exhibit J, means that that the proposed development could coexist in a harmonious way with the adjoining residential area.
The interface of zones is a matter that I have considered, however I am satisfied that this zone interface has been adequately and appropriately addressed in the proposed development. I also note, as advised by the experts, that there is nothing in the guidelines or controls that state that all commercial activity must front Oxford Street and indeed the properties are zoned commercial 3C for the whole block. As such, there is no requirement that commercial development must be contained to the Oxford Street frontage, and indeed this would be unreasonable. Nonetheless, clearly the amendments to this proposal provide for greater residential amenity than other commercial premises may because all deliveries to the subject premises is to be via Oxford Street and there is the provision of a goods lift within the development to provide for the necessary delivery of goods to the various levels of the property.
With respect to the airconditioning units that were also perceived by objectors as an issue for residential amenity, these have been relocated, as have the bins storage area, and the grease trap. Furthermore and the hours of operation have been limited in the conditions of consent.
It is noted that the conditions of consent require that every use or any use for the premises is to seek separate development application approval prior to their use. In this regard the conditions of this consent cannot fetter a further consideration of matters that are covered in these conditions but nonetheless the reason for the imposition of conditions in terms of the hours of operation and deliveries, et cetera, would be taken into consideration in any future development application for the actual use of the premises.
I am satisfied the amended proposal is worthy of approval. I also note the original assessment carried out by the council officers is a comprehensive assessment, and subsequently there have been amendments. As I stated even today there were further amendments with the benefit of hearing concerns from the residents. I am more than satisfied that in this finegrained inner city urban environment that there is no reason, in my assessment, having regard to the experts and having regard to all the evidence to the Court, including the objectors' concerns that would warrant refusal of the development application.
Clearly people that live in these finegrained areas have the advantage of the infrastructure and convenience of an inner city location, including good public transport and shops et cetera, and it is unrealistic to expect the same level amenity as in outer suburbia. Nonetheless, having said this, it is also important to ensure that developments coexist harmoniously with residential areas. In this regard the proposal also has appropriate conditions.
It is also noted that the heritage expert of the council has provided conditions which the applicant agrees to in terms of the heritage, so there is no longer any issue for heritage. In terms of the bulk and scale of the development, I am also satisfied that the proposal is satisfactory and it will sit comfortably in this conservation area without adverse impacts on adjoining properties.
The Court in its consideration of the application under s 79C, apart from the public interest and the submissions received in respect of the development application, must also have regard to the State Environmental Planning Policy objections to vary both the height and the FSR. I am satisfied that the SEPP 1 objections are wellfounded and in this regard I accept the council officer's report and also the experts that the Court has the advantage of hearing from today.
In the circumstances of this case it is noted that the FSR is already exceeded by the current building and the additional 30 sq m will not create unreasonable demands on infrastructure and indeed the site is well served by public transport and the issue of parking also is not one that would warrant refusal of the application given the location. And in terms of the height of the building, once again the height of the building is acceptable and the proposed development in the circumstances should be approved and the objection is well founded.
The objectives under cl 12AA below for the maximum height development standard of 9.5m inform the SEPP 1 assessment.
The objectives of the maximum building height development standards set by clause 12 are as follows:
(a) to minimise impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City skyline,
(b) to provide compatibility with the adjoining residential neighbourhood,
(c) to safeguard visual privacy of interior and exterior living areas of neighbouring dwellings,
(d) to minimise detrimental impacts on existing sunlight access to interior living rooms and exterior open space areas and minimise overshadowing,
(e) to maintain the amenity of the public domain by preserving public views of the harbour and surrounding areas and the special qualities of streetscapes.
I agree with the council officer's report and the experts and in my assessment also the objectives of the standard are satisfied. The height of the proposal is compatible with the adjoining residential neighbourhood and safeguards visual privacy and does not impact on solar access.
The objectives of the floor space ratio standards set by clause 11 are as follows:
(a) to set the maximum density for new development,
(b) to control building density, bulk and scale in all residential and commercial localities in the area in order to achieve the desired future character objectives of those localities,
(c) to minimise adverse environmental effect on the use or enjoyment, or both, of adjoining properties, and
(d) to relate new development to the existing character of the surrounding built and natural environment as viewed from the streetscape, the harbour or any other panoramic viewing point.
I am satisfied that the objectives of cl11AA above are also satisfied and the SEPP 1 objection is allowed. The building density bulk and scale is consistent with desired future character of the area and the proposal will not have adverse amenity impacts for adjoining properties and the proposal relates to the existing area.
In my assessment the SEPP 1 objections in exhibits B and C to vary the height and the floor space ratio are allowed, which then allows for the merit assessment.
The objectives of the 3C zone are:
(a) to establish a neighbourhood shopping centre zone which allows a less intensive form of development than occurs in the main commercial areas which does not prejudice the viability of the main centres,
(b) to provide for development of the scale and type compatible with the amenity, the surrounding residential area, and
(c) ...
I am satisfied the relevant objectives of the zone are satisfied. It is envisaged that Oxford Street be retained as a vibrant commercial strip and I am satisfied the proposed development will provide for the satisfaction of the objectives of the zone.
In terms of the separation distances, the experts looked at the separation distances between the nearest residential development and the rooftop terrace. The rooftop terrace is at a minimum 12.5 m from No 2, that has rather blank walls to its southern elevation, and the objections received from other properties, in particular Nos 1 and 3, the separation distances are well in excess of the accepted standard, in particular for an urban environment. On the issue of aural privacy as well as visual privacy, I am also satisfied the small rooftop terrace is appropriate in the circumstances.
Precedent is an issue that the Court must also have regard to and the judgment of Justice Lloyd in Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 , states "precedent on its own can be a reason for refusal." However, I am satisfied that this is not a precedent that can be invoked by others, given the nature of the extension, given its location at the rear of the commercial premises, and given the fact that it does not pose potential adverse impacts for adjoining properties. A terrace area of 4 sq m or thereabouts is not one that others would seek to invoke. Rooftop terraces may have the potential to create issues. In particular where they are placed on a terrace in a row and the precedential effect of having rooftop terraces within the Paddington residential area, or a fine grain urban area, in many instances, would be undesirable however this is not a situation akin to the application before me.
I have already addressed the issues raised by the objectors, and there are no issues contested by the council, although I do note that this has not moved to 'consent orders' and is important that I must also be satisfied that the proposed development is satisfactory for the site.
On the basis on my assessment and with the benefit of Ms Kerry Gordon, town planner for the respondent, and Mr Kazavanas, town planner for the applicant, and with the benefit of council officer's report and all the evidence to the Court, including the site inspection, I am satisfied the proposed development warrants approval. Accordingly and the formal orders of the Court are:
(1) The appeal in respect of the premises known as 76 Oxford Street, Paddington is upheld.
(2) The Court grants leave to the amended plans and the applicant is to pay the respondent's costs in the quantum of $2,000.
(3) The State Environmental Planning Policy objections to vary the height and the floor space ratio as contained in the Woollahra Local Environmental Plan are allowed.
(4) The development application submitted to Woollahra Council for alterations and additions is granted approval, subject to the conditions contained in annexure A.
(5) The exhibits are returned to the parties with the exception of exhibits C, B, J and 6.
J S Murrell
Commissioner of the Court
Decision last updated: 05 October 2011
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