Gregory International v Waverley Council

[2004] NSWLEC 365

Land and Environment Court

of New South Wales

CITATION:	Gregory International v Waverley Council [2004] NSWLEC 365
PARTIES:	Gregory International Pty ltd Applicant Waverley Council Respondent
FILE NUMBER(S):	11097 of 2002
CORAM:	Roseth SC
KEY ISSUES:	Development Application - Development Control Plan - Development Standards :- planning principle: building envelope and FSR
LEGISLATION CITED:	Environmental Planing and Assessment Act 1979 Waverley Local Environmental Plan 1996
CASES CITED:
DATES OF HEARING:	16/06/2004
DATE OF JUDGMENT:	07/12/2004
LEGAL REPRESENTATIVES:	Mr D Parry, barrister Mr G Newport, barrister

JUDGMENT:

- 5 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

12 July 2004

11097 of 2002 Gregory International Pty Ltd v Waverley Council

JUDGMENT

1 SENIOR COMMISSIONER: This is an appeal against the refusal of a development application to demolish the existing buildings and erect a three-storey residential flat building over basement parking on lots 45 and 46 DP 5953, known as 7-11 Consett Avenue, Bondi.

The site

2 The site is the amalgamation of two parcels. On one stands a detached house currently used as a backpackers’ hostel, on the other a pair of semi-detached houses. It is located on the east side of Consett Avenue, which is a short north-south running street between Lamrock Avenue and Hall Street.

3 Consett Avenue’s character is formed mainly by its street trees and low-scale buildings between large blocks of flats at each corner. The character is markedly different from other streets near Bondi beach, which are extensively developed and devoid of trees. Apart from the flat buildings at the corners, there is a three-storey 1970s apartment building adjoining the corner building at Lamrock Avenue. Between these apartment buildings on the east side of the street are 3 houses a two pairs of semis. The proposal would demolish one house and one pair of semis, leaving two houses to the north and a pair of semis to the south.

The proposal and its history

4 The applicant proposes to demolish the existing house/hostel and pair of semis on the site and erect a three-storey building containing 9 apartments with basement parking. The third storey is set back from the lower levels and is in a form that the applicant has describes as a Mansard roof. The Floor Space Ratio (FSR) of the proposal is 0.9:1.

5 The applicant lodged the development application in September 2002. Following notification the council received five letters of objection as well as one of support. The council refused the application in March 2003. Following refusal the applicant sought to meet the council’s objections by submitting several amended proposals, none of which met with the council’s approval. The latest plans were put before the Joint Waverley/Randwick Design Review Panel. The Panel’s report states that the proposal had insufficient merit, did not address the streetscape, had excessive site density, unsatisfactory scale, bulk, built form and appearance.

Planning instruments and policies

6 The Waverley Local Environmental Plan 1996 zones this site 2(b). At the time the application was lodged, the zoning was 2(c). It was changed to 2(b) in December 2002. Development Control Plan 1 sets out controls for multi-unit housing. The DCP establishes a FSR is 0.6:1 in the 2(b) zone.

The issues

7 The council submitted a Statement of Issues containing nine issues. These were discussed during the hearing. It became clear that there were only two major issues, and that they were connected.

· Is the proposal’s non-compliance with the maximum FSR in the DCP justified?

· Is the proposal’s impact on the streetscape acceptable?

The evidence

8 The council’s planning expert was Mr W Gawne, while the applicant’s was Mr M Neustein, both urban planners. They agreed that the key issue was the FSR. Mr Gawne did not think that an additional 50% to the permissible FSR was justified. Mr Neustein justified it on the basis that the FSR control was part of the building envelope control. The building envelope control consists of separate controls on height, setbacks and density. In Mr Neustein’s view, so long as the height and setback controls were satisfied, there was no need to satisfy the density (FSR) control.

9 The experts disagreed on whether the height control was satisfied. The DCP establishes a maximum height of 7.5m for walls and 9.5m for ridges. The proposal satisfies the 9.5m maximum for ridges. Whether it satisfies the 7.5m requirement for walls depends on whether the sides of the top floor are considered roof or wall. The sides are what Mr Neustein refers to as the Mansard roof. They are one or two degrees off the vertical and clad in metal.

10 The Court heard the evidence of resident objectors and supporters. Generally the objectors lived in Consett Avenue and their main concern was that the proposal was out of character with the street. Most of the supporters lived in a block of flats in Jaques Avenue that adjoins the site to the east. Their main concern was that the existing use of the site for a backpackers’ hostel should cease, as the backpackers disturbed them.

Findings

11 The residents supporting the proposal appeared to have only one reason for their support, namely that it would replace the backpackers hostel. It seems to me that the fact that the existing hostel is a nuisance for residents living in Jaques Street should not be a major consideration in the assessment of the proposal. The objectors had the same concerns as Mr Gawne, so their views do not need to be considered separately from the expert evidence.

12 The applicant’s case for justifying the 0.9:1 FSR was that the proposal satisfied the height and setback controls of the DCP. I do not accept that this justifies the additional floor space. I can find no suggestion in the DCP that would give support to the applicant’s case.

13 In PD Investments No 8 v Manly Council [2004] NSWLEC 355, Tuor C dealt with a similar issue, namely the role of FSR control where there is also a control on building envelope. She set out the following principles:

§ FSR and building envelope controls should work together and both controls and/or their objectives should be met.

§ A building envelope is determined by compliance with controls such as setback, landscaped area and height. Its purpose is to provide an envelope within which development may occur but not one which the development should necessarily fill.

§ Where maximum FSR results in a building that is smaller than the building envelope, it produces a building of lesser bulk and allows for articulation of the building through setbacks of the envelope and variation in building heights.

§ The fact that the building envelope is larger than the FSR is not a reason to exceed the FSR. If it were, the FSR control would be unnecessary.

14 These principles apply also to the subject application. It appears that the combination of the envelope control and the FSR is intended to produce a two-storey building, perhaps with an attic. (The difference between an attic and a storey within a Mansard roof is that the attic is within a stricture that has a pitch of no more than (say) 35o, while the Mansard roof has a pitch of nearly 90o.) No matter how much the third floor of this proposal is set back, it will still be visible and present an alien feature in the street.

15 Moreover, I do not think that the proposal complies with the DCP’s maximum height of 7.5m for any external wall. Calling the wall of the third floor a Mansard roof does not make it any less of a wall. A near-vertical plane (whether or not it is clad in a roofing material) is, in effect, a wall.

16 Given my finding on the proposal’s FSR, it is not necessary to deal in detail with the question of its impact on the street’s character. I accept the council’s and the residents’ evidence that the proposed building would be alien to its neighbours as well as the houses on the west side of Consett Avenue. (I accept, of course, that the west side is zoned differently, so some difference in scale should be accepted.) I do not understand why a designer would choose a roof form that has its origins in 17th century France and no examples in Bondi (or Sydney). I have looked at the photos of the architectural references in Mr Neustein’s report. While they might justify a parapet and balconies to the front, they do not justify a Mansard roof. In any case the strongest architectural references should come from Consett Street itself.

17 For the above reasons the appeal is dismissed.

Orders

1. The appeal is dismissed.

2. Development application to demolish the existing buildings and erect a three-storey residential flat building over basement parking on lots 45 and 46 DP 5953, known as 7-11 Consett Avenue, Bondi is determined by refusal.

3. The exhibits are returned.

__________________
Dr John Roseth
Senior Commissioner