FM Holdings Pty Ltd v Hurstville City Council

[2014] NSWLEC 1061

Land and Environment Court

New South Wales

Medium Neutral Citation:	FM Holdings Pty Limited v Hurstville City Council [2014] NSWLEC 1061
Hearing dates:	3-4 April 2014
Decision date:	08 April 2014
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	Residential flat building: height, bulk and scale, compliance with planning controls, impact on adjoining properties and road network, area undergoing transition from low to higher density residential development
Legislation Cited:	Land and Environment Court Act 1979; Hurstville Local Environmental Plan 2012; State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings; Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment; State Environmental Planning Policy No 55 - Remediation of Land; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; Environmental Planning and Assessment Act 1979
Texts Cited:	Development Control Plan 1 - Hurstville LGA Wide; Residential Flat Design Code
Category:	Principal judgment
Parties:	FM Holdings Pty Limited (Applicant) Hurstville City Council (Respondent)
Representation:	Mr M Staunton (Applicant) Ms A Cowper Gadens Lawyers (Applicant) Mr S Simington Lindsay Taylor Lawyers (Respondent)
File Number(s):	10952 of 2013

Judgment

1. FM Holdings Pty Limited (FM) lodged Development Application DA2013/0316 with Hurstville City Council on 30 September 2013 seeking consent to construct a residential flat building at 50-52 Lawrence Street, Peakhurst. Consent was refused on 20 December 2013 and FM is appealing that decision.

1. The issues in the case are the bulk, scale, height and setback of the proposed building. The plans now before the Court vary significantly from those refused by the council.

The site and its context

1. The site is located on the northern side of Lawrence Street, Peakhurst and comprises two adjoining allotments known as Nos 50 and 52. The combined frontage is 35.36m and area is 1185sqm. The site falls approximately 4.2m from its south eastern corner to the north west. Each allotment contains a single storey dwelling house and associated outbuildings that would be demolished to facilitate redevelopment of the site.

1. Development immediately adjoining the site to its east and west are detached dwelling houses with the locality characterised predominately by single storey dwelling houses with some dual occupancy and villa/townhouse developments. The area is currently in transition from this low density, small scale built form as a result of the recent rezoning of the area, which now permits residential flat buildings.

Background and the proposal

1. The original development application was lodged with the council on 30 September 2013 and considered by the council's Design Review Panel (DRP) on 7 November 2013. The Panel recommended a number of changes be made to the plans and the council provided the applicant with an opportunity to prepare amended plans to reflect those recommendations. That option was not taken and the council refused consent on 20 December 2013. The grounds for refusal were reflected in the contentions of the case.

1. The matter proceeded directly to hearing as the council did not grant its staff delegation to proceed to a conciliation conference as provided under s34 of the Land and Environment Court Act 1979.

1. The applicant was granted leave to rely on amended plans on 25 March 2014, having regard to the council's Statement of Facts and Contentions and the initial joint expert report prepared by town planning and urban design/architectural experts for the proceedings (Exhibit 4). The experts reviewed those plans, the Revision B plans, a supplementary joint report was prepared (Exhibit 5) and further changes were recommended. As the result of the joint conferencing, further amended plans were prepared. Those plans, the Revision C plans (Exhibit A) in the proceedings, are now before the Court as leave was granted to the applicant to rely on those plans during the hearing. No order was made in relation to costs as the council agreed the amendments were minor.

1. The main changes made to the plans from those assessed by the council are:

• Relocation of communal open space from within the front building line and the rear, north eastern corner of the site to the rooftop as suggested by the DRP;
• Increase in deepsoil planting areas around the perimeter of the site;
• Provision of a 6m front building line;
• Reconfiguration of units to improve amenity as recommended by DRP;
• Increased side boundary setback from 4m to 6m;
• Reduction in building height;
• Reconfiguration of basement carpark to improve access and storage space;
• Increase in storage spaces allocated to individual units;
• Increase in courtyard and balcony areas.

1. The proposal is for:

• Demolition of existing dwellings and outbuildings and the removal of one tree;
• Relocation of sewer line;
• Construction of a three storey residential flat building over basement carpark with roof top common open space.

1. The building would contain a total of 16 units of which 12 are two bedroom and four are studios. Parking for 20 vehicles would be provided within the basement.

1. A 6m building setback is proposed to Lawrence Street and the side and rear boundaries however the basement is excavated to within 2m of each side boundary and 6m from the rear. Vehicle access would be via a ramp located at the existing crossover point to No 50. Each ground level unit would open onto a courtyard with the first and second floor units having balcony areas for private open space purposes in addition to the communal roof top terrace. A lift provides access to all levels of the building.

The planning controls

1. The site is zoned R3 Medium Density Residential under Hurstville Local Environmental Plan 2012 (LEP). Residential flat buildings are permitted with consent in the R3 zone. The aims of the plan are found in clause 1.2 and are:

(a) to encourage and co-ordinate the orderly and economic use and development of land that is compatible with local amenity,

(b) to provide a hierarchy of centres to cater for the retail, commercial, residential accommodation and service needs of the Hurstville community,

(c) to provide a range of housing choice that:

(i) accords with urban consolidation principles, and

(ii) is compatible with the existing environmental character of the locality, and

(iii) is sympathetic to adjoining development.

(d) to protect and conserve the environmental heritage, cultural heritage and aesthetic character of Hurstville,

(e) to maintain and enhance the existing amenity and quality of life of the Hurstville community,

(f) to ensure development embraces the principles of quality urban design,

(g) to ensure that development is carried out in such a way as to allow the economic and efficient provision of a range of public services and community facilities,

(h) to protect and enhance areas of remnant bushland, natural watercourses, wetlands and riparian habitats,

(i) to retain, and where possible extend, public access to foreshore areas and link existing open space areas for environmental benefit and public enjoyment,

(j) to ensure development embraces the principles of ecological sustainability.

1. Clause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R3 zone are:

· To provide for the housing needs of the community within a medium density residential environment.

· To provide a variety of housing types within a medium density residential environment.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

· To ensure that a high level of residential amenity is achieved and maintained.

· To provide for a range of home business activities, where such activities are not likely to adversely affect the surrounding residential amenity.

1. Two development standards apply to the site. These are height of buildings (clause 4.3) with a maximum height of 12m applying to the site and floor space ratio (FSR) (clause 4.4) with a maximum FSR of 1:1 allowed.

1. Clause 5.6 applies to architectural roof features and reads:

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

(a) to create variety in the Hurstville skyline and urban environment,

(b) to encourage quality roof designs that contribute to the aesthetic and environmental design and performance of the building,

(c) to encourage integration of the design of the roof into the overall facade, building composition and desired contextual response,

(d) to promote architectural design excellence.

(2) Development that includes an architectural roof feature that exceeds, or causes a building to exceed, the height limits set by clause 4.3 may be carried out, but only with development consent.

(3) Development consent must not be granted to any such development unless the consent authority is satisfied that:

(a) the architectural roof feature:

(i) comprises a decorative element on the uppermost portion of a building, and

(ii) is not an advertising structure, and

(iii) does not include floor space area and is not reasonably capable of modification to include floor space area, and

(iv) will cause minimal overshadowing, and

(b) any building identification signage or equipment for servicing the building (such as plant, lift motor rooms, fire stairs and the like) contained in or supported by the roof feature is fully integrated into the design of the roof feature.

1. Development Control Plan 1 - Hurstville LGA Wide (DCP) applies to the site and its aims (clause 1.7) are to encourage and co-ordinate the orderly and economic use and development of land to cater for a variety of residential, retail, commercial and service needs of the Hurstville community while protecting and enhancing amenity, cultural heritage and ecological sustainability with the Hurstville LGA. It was created to support and supplement the LEP by providing objectives and guidelines for development which encourages design that responds positively to the environment and the context of the locality and generates high quality urban design outcomes.

1. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP65) and the associated Residential Flat Design Code (RFDC); Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment; State Environmental Planning Policy No 55 - Remediation of Land (SEPP55) and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 apply to the application.

The issues

1. As a result of the agreed position between the town planning experts' assessment of the amended plans, the remaining contentions are:

• Building height;
• Building envelope;
• Top floor setback;
• Extent of excavation;
• Size of courtyards;
• Internal amenity of units;
• Precedent.

The evidence

1. The hearing commenced on site with evidence heard from a number of residents who objected to the proposal. The issues raised are summarised as follows:

• Excessive density, height, bulk and scale;
• Adverse amenity impacts through additional noise, traffic, density, loss of views, odours, overlooking and overshadowing;
• Lack of parking and footpaths, road widths inadequate, particularly when rubbish bins are out for collection;
• Stormwater and sewerage inadequate;
• Concerned excavation will damage adjoining property;
• Non-compliance with planning controls;
• Safety concerns;
• Impact on flora and fauna.

1. Expert town planning evidence was heard from Mr A Darroch for the applicant and architectural and urban design evidence from Mr M Zanardo for the council. They prepared a joint report (Exhibit 4) that made a series of recommended amendments to the plans. The applicant prepared plans that reflect those recommendations and the experts prepared a supplementary joint report (Exhibit 5) that addressed those further amended plans (Exhibit A) and made additional recommendations. The experts conferred during the hearing and have agreed on the extent of changes that would address the majority of contentions.

1. The parties have agreed that these further changes can be addressed through conditions of consent and relate to further reduction in floor area so that the FSR complies with the LEP development standard. The area of balconies is increased so as to be compliant for all units other than unit 4, one of the studio units. That unit has a courtyard area of 34sqm whereas the DCP requires a minimum area of 50sqm. Agreed conditions of consent have been filed that reflect this position. In particular, proposed condition 10B requires the following changes to be made to the plans:

• The dining room skylights to units 13 and 16 must be relocated on the roof plan 5/20 to reflect their location on the second plan 4/20.
• The front fence must have a maximum height of 1m (in accordance with HDCP 1 4.3.2.9) and the mailbox wall must be located perpendicular to the boundary to allow a greater height without affecting the 1m fence height.
• The gross floor area of the development must be reduced by 16.8 sqm generally by insetting external living room walls and their openings to each unit to achieve the required reduction.
• The ground floor unit 2 bedroom1 window shall be protected (drenched) in accordance with the Building Code of Australia Clause C3.4 to comply with clause D1.7 and not require any fire rated wall shielding the windows.
• An increase in the area of the balcony to Unit 15 to 12m within a minimum dimension of 2.5m without further encroachment on the side or rear boundary setbacks.
• The Building Code of Australia requirement for the stair to be fire isolated must be dealt with by a BCA alternate solution and not be any design modification to the stairs or ground floor lobby area.
• The roof to the bin store area is to be deleted.

1. The amended plans and the proposed conditions address the original contentions that relate to non-compliance with the development standards for height and FSR. The parties agree that the only breach of the height development standard is for the roof structure of the lift overrun and that, in accordance with the provisions of clause 5.6 of the LEP, consent may be granted for an architectural roof feature above the 12m height standard provided the consent authority is satisfied that the provisions of clause 5.6(3) are met.

1. The experts agree that the only part of the proposed structure that exceeds the 12m height control is an architectural roof feature, it comprises a decorative element on the uppermost portion of the building, is not an advertising structure and does not incorporate floor space that could be modified to include floor space as defined in the dictionary to the LEP. They also agree that it would have no overshadowing impact to adjoining properties and that all equipment for servicing the building would be fully integrated into the structure. Accordingly, it is the agreed position of the parties that the height of the development is compliant with the LEP and that, subject to the agreed consent condition, the FSR will be 1:1 so is compliant with the LEP development standard.

1. It is also agreed that the amended plans and proposed conditions satisfactorily address all of the contentions raised in relation to the case, despite the fact that there remain areas of non-compliance with the DCP provisions. Those areas are the building envelope; extent of excavation and the area of the courtyard to unit 4. The landscaped areas now satisfy or exceeds the controls, ground floor setbacks exceed the 4m control for the two lower levels, with the upper floor in part, encroaching the height plane in some locations. All other relevant controls contained in the DCP are met.

1. The DCP, in clause 4.3.2.4, contains Building Height and Form controls. The objectives of those controls are to ensure new development is compatible with the existing in bulk and scale, with the control of height and form achieved by the use of a building envelope which controls the building height, side and rear setbacks. For residential flat buildings, the building envelope defines planes projected at 45 degrees from a height of 1.5m above natural ground level at the boundaries to a maximum height of 12m. The diagrams included in the clause provide two options for three storey buildings, one requires the entire building to be setback 7m from side boundaries, the second a four metre setback for the lower two floors and rooms within the roof space forming the third level and the third option having the lower two floors setback 4m from the side boundary and the upper floor setback within the 45degree plane. The council used a 7m setback for this level in its assessment of the application. A plan that indicates the extent of this encroachment has been provided as part of Exhibit A.

1. The experts agree that the amendments that have been made to the plans resolve the remaining building envelope and bulk and scale matters. Mr Zanardo says the extent of breach is acceptable and is the result of an "awkward planning control for a sloping site" which, because of the crossfall being in excess of 3m, skews the extent of compliance. Both experts agree that because of the small footprint of the building, it is not appropriate to step the floorplate and therefore the slope will result in either breach of height controls or unnecessary excavation of the site to achieve full compliance. He says that the main encroachment is in the southwestern part of the building with the breach being "minor" and because the area is balcony area and one of the corner units, the overall presentation to the street is superior to a fully compliant building. He says that there would be no improvements to solar access or overlooking if the building was setback further at the upper level due to the compliant location of the two lower floors.

1. Mr Darroch agrees. Both experts say the 6m setback at ground floor results in a slender built form and is therefore a superior outcome to a development that is setback 4m as provided for under the DCP controls. They also agree that the setbacks provide for suitable amenity to adjoining sites in terms of overlooking and acoustic separation, having regard to the provisions of SEPP65.

1. The DCP states: The natural ground level shall not be excavated more than 0.5m for the finished ground floor level, in order that a building can conform with the building envelope. As stated above, the experts agree that it is not appropriate to step the building floorplate and therefore support the extent of cut proposed. This is a maximum of 1.5m in the southeastern corner of the site. The ground floor level is above existing ground level across the northwestern floorplate. The experts agree that it is more desirable to cut into the site than raise the floor above street level as the former options retains accessibility and reduces the overall building height. They conclude the extent of excavation is acceptable.

1. The excavation control is to set the ground floor level and does not prevent additional excavation for basement carparks, which are encouraged in clause 4.3.2.6 with a control that the basement does not extend more than 1m above natural ground level.

1. Clause 4.3.2.11 of the DCP applies to private open space. In the case of residential flat buildings, ground floor dwellings containing less than 3 bedrooms require a minimum area of 50sqm, with a minimum dimension of 3m and the "principal area" having minimum dimensions of 4m x 4m, not steeper than 1 in 20 and conveniently accessible from the living room. The areas of the ground floor courtyards vary from 31.99sqm (unit 4) to 136.7sqm (unit 6). The experts agree that because unit 4 is a studio unit, the area of the associated courtyard is appropriate to the likely occupancy of that unit.

Conclusion and findings

1. The applicant has made significant changes to the plans for the proposal following the council's determination of the application. Those changes have gone a long way to address the contentions and, importantly, have also ensured compliance with the relevant development standards contained in the LEP and the majority of controls contained in the DCP. This is particularly important in an area undergoing transition, as is the case for this site. The area has been rezoned from low density, single dwelling houses to permit three storey residential flat buildings. This fact will result in change to the streetscape and character of the area. At this stage, according to the evidence, only one development consent has been issued for residential flat development within the precinct and that development was fully compliant with the council's controls.

1. The council undertook an environmental study of the area prior to the rezoning and ascertained the suitability of the locality for higher density housing having regard to site constraints, road networks and availability of infrastructure, determined the density and built form appropriate and has written that into the LEP and DCP. The objectives of the controls are clearly interpreted in the documents and, having regard to the expert evidence in the case, have been met through the changes made to the plans and those further changes required under the conditions. I am satisfied, having heard this evidence that it is appropriate to allow the variations to the DCP as outlined above because the objectives of the control are met and I particularly agree that the increased side boundary setback at the ground and first floor levels is desirable and has regard to the provisions of SEPP65 and the RFDC. I also accept the evidence that the courtyard allocated to unit 4, with an area of 34sqm, is of sufficient area for a studio unit.

1. In reference to the particular issues raised by the objectors, that are not addressed above, the evidence is that the road network is appropriate for the ultimate density envisaged in the R3 zone. The council's planning studies for the area considered the traffic generated by the density controls contained in the LEP and DCP, road widths and parking requirements. The applicant has met these provisions. The conditions of consent require the construction of a footpath across the frontage of the site and, as more redevelopment occurs, this footpath will be linked to provide access to bus stops, nearby shops and parkland.

1. Clause 5.6 of the LEP provides for roof structures in excess of the development standard for height and, having regard to the evidence, I am satisfied that the height of the development is consistent with the provisions of that clause.

1. The council considers the location and design of the proposed bin store is appropriate however requires a condition that this area is not roofed.

1. Stormwater will be collected and disposed of by way of an easement that is to be obtained over downstream properties and the sewer is to be relocated with a consent condition requiring that this work is in accordance with the requirements of Sydney Water (conditions 9, 10,10A, 11, 13, 17, 38 and 55). I am satisfied that these conditions will ensure the systems are adequately sized and maintained for the life of the development.

1. Prescribed conditions are included in the consent to address protection and support of adjoining properties (condition 61) and additional conditions requiring the applicant to undertake pre and post construction dilapidation reports of adjoining premises (conditions 25 and 47).

1. There is no evidence that the development will affect the safety of residents in the locality.

1. The consent provides for the removal of one tree located on the eastern boundary towards the front of the site with the other trees to be retained and protected during construction (conditions 18 and 19). The landscape plans provide for the planting of 21 trees with a mature height of 6m. For this reason I am satisfied that there will be no adverse impact to flora and fauna.

1. Having regard to the evidence, the provisions of the LEP and DCP and those matters prescribed under s79C of the Environmental Planning and Assessment Act 1979, I am satisfied that the plans now before the Court are either compliant with the council's planning controls or meet the objectives of those controls, and where not met, the variations are minor. For this reason, it is appropriate for consent to be granted.

1. The Orders of the Court are:

(1)   The appeal is upheld.

(2)   DA2013/0316 for the demolition of existing structures removal of one tree and the construction of a residential flat building comprising 12 x 2 bedroom and 4 studio units at 50-52 Lawrence Street, Peakhurst is approved subject to the conditions contained in Annexure A.

(3)   The exhibits, other than exhibits A, F, G and 2, can be returned.

__________________

Sue Morris

Commissioner of the Court

ANNEXURE A

**********

Decision last updated: 08 April 2014