Hannas Group of Companies v Strathfield Municipal Council
[2006] NSWLEC 73
•02/23/2006
Land and Environment Court
of New South Wales
CITATION: Hannas Group of Companies v Strathfield Municipal Council [2006] NSWLEC 73 PARTIES: APPLICANT:
Hannas Group of Companies
RESPONDENT:
Strathfield Municipal CouncilFILE NUMBER(S): 10645 of 2005 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Design - Amenity - Heritage and Impact on the Fig. LEGISLATION CITED: Strathfield Planning Scheme Ordinance, (SPSO)
Development Control Plan - Waste Management No 26, (DCP26)
Development Control Plan No 19 - Public Notification Requirements for Development and Complying Development Applications, (DCP19)
State Environmental Planning Policy No 65, (SEPP65)
Draft Strathfield Local Environmental Plan 2003, (DSLEP)
Environmental Planning and Assessment Act 1979, ss 79C and 97DATES OF HEARING: 27/10/2005, 28/10/2005, 03/02/2006, Amended conditions received 20/02/2006
DATE OF JUDGMENT:
02/23/2006LEGAL REPRESENTATIVES: APPLICANT:
Mr I Hemmings, barrister, instructed by
Mr M Mazzone, solicitor
SOLICITORS:
Morgan Lewis AttorneysRESPONDENT:
Mr M Wright, barrister instructed by
Ms P Hudson, solicitor
SOLICITORS:
Marsdens
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
23 February 2006
10645 of 2005 - Hannas Group of Companies v Strathfield Municipal Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Strathfield Municipal Council (the council) to refuse a development application to demolish an existing commercial building and to erect a seven (7) storey mixed-use building with basement level parking and ground floor retail at Lot 100, DP790748, being Nos 454-458 Liverpool Road, Strathfield South.
2 I visited the land in company with the parties on the morning of the first day of proceedings. Nearby residents gave evidence.
3 I have concluded that the application should succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979.
The land
4 The land is situated on the southern side of Liverpool Road on the corner of Liverpool Road and Holmwood Avenue. Erected on the land is a two-level commercial building, formerly used as a sand and gravel supply business known as ‘Uncle Al's Hardware’. The service yard is situated in the southern portion of the site with access from Holmwood Avenue. The land adjoins a single-storey residential property to the south in Holmwood Avenue known as No 2 Holmwood Avenue. A large Fig tree is situated on the property adjoining to the east, near the common boundary.
5 The land is regular with a frontage to Liverpool Road of 20.1m and a frontage to Holmwood Avenue of 35.6m and a site area is 709.5m2. There is a gradual fall from north to south of about 750mm.
6 To the west of the land, in Liverpool Road, the nearby streetscape is characterised by small-scale single-storey and two-storey commercial buildings. A three-storey residential flat building is on land abutting, to the east, the subject land. Nearby commercial buildings are either single-storey or two-storeys in height, some with an upper level of residential accommodation. Abutting the land to the south is a low-density residential precinct fronting Holmwood Avenue consisting mainly of single-storey detached dwelling houses in the Federation or Post Federation style. These dwelling houses are uniform in appearance in terms of their size, setback and architectural features. Opposite the land in Liverpool Road is the Strathfield South Public School, which is a locally listed heritage item.
Relevant planning controls
Strathfield Planning Scheme Ordinance, (SPSO)
7 Under the provisions of the SPSO the land is zoned 3(a) Business ‘Special’ and the proposal as ‘multiple-unit housing’ and ‘refreshment room’ is permissible with consent. Until one day prior to the hearing the parties had wrongly thought that the land was zoned 3(b) Business ‘Special’. Under that zoning the proposed ground floor refreshment room, (restaurant), would not have been permissible. That question of the zoning is no longer in issue.
8 Under cl 32 of the SPSO
- In respect of any application for the consent of the responsible authority whether under this Ordinance or under any provision of the Act for consent or approval to the carrying out of development for a purpose referred to in Column IV of the Table to clause 22 of this Ordinance, namely:
Aesthetic appearance
(a) to the erection of a building, to the carrying out of a work or to the use of land within a Foreshore Scenic Protection Area or within view of any waterway, or adjacent to any county road or main road, railway, public reserve or land reserved for open space or land within Zone No.6(a) or 6(b), the responsible authority shall take into consideration the probable aesthetic appearance of such land or of the proposed building or work when used for the proposed purpose and viewed from such waterway, county road or main road, railway, public reserve or any such reserved or zoned land;
9 Under cl 41C of the SPSO:
- The Council shall not grant consent to development on land which adjoins land in a residential zone unless it is satisfied that:
(a) wherever the Council considers it to be appropriate, proposed buildings are compatible with the height, scale, siting and character of existing buildings within the residential zone; and
(b) any goods, plant, equipment and other material that will be on the land as a consequence of the proposed development are to be stored within a building or will be suitably screened from existing buildings within the residential zone; and
(c) the elevation of any proposed building facing land in a residential zone has been designed to be compatible with existing buildings within the residential zone, or is suitably screened; and
(d) the development will not inhibit reasonable solar access to existing buildings within the residential zone between the hours of gam and 3pm during the winter solstice; and
(e) noise generating from fixed sources or motor vehicles associated with the development has been effectively insulated or otherwise minimised; and
(f) the development will not otherwise cause nuisance to residents, by way of hours of operation, traffic movement, parking, headlight glare, security lighting or the like; and
(g) windows facing residential areas have been treated to avoid overlooking of private yard space or windows in residences.
10 Under cl 44 of the SPSO the maximum floor space ratio (FSR) of buildings in the 3(b) zone is 3:1. Other commercially zoned land nearby has the same or similar FSR.
11 Under cl 59B of the SPSO development within the vicinity of heritage items requires special consideration. The Strathfield South Public School is listed as a heritage item.
Development Control Plan - Waste Management No 26, (DCP26)
12 The council considered the development application under DCP26 that the proposed location of the waste storage rooms could be better located nearer the street and better ventilated.
Development Control Plan No 19 - Public Notification Requirements for Development and Complying Development Applications, (DCP19)
13 There was no issue between the parties that the application had been other than properly advertised under DCP19.
State Environmental Planning Policy No 65, (SEPP65)
14 SEPP65 applies to the proposed development, as it is a residential flat building containing three or more storeys. A SEPP No 65 design verification statement was submitted with the development application plans. The council considered the proposal of unsatisfactory design under SEPP65 and the associated Residential Flat Design Code.
Draft Strathfield Local Environmental Plan 2003, (DSLEP)
15 Under the DSLEP the land is proposed to be zoned 3(b) business and the proposal including the refreshment room would be permissible with consent.
16 Under cl 21 of the DSLEP the objectives of the 3(b) business zone are:
a) To encourage business activities which contribute to economic growth and employment opportunities within the area; and
(b) To provide a range of retail, commercial, social, entertainment and professional services within convenient travelling distances of surrounding residential areas and which create active local centres; and
(c) To promote the vitality of local business centres and to assist urban consolidation by permitting appropriate forms of residential development in this zone; and
(d) To improve the environmental amenity of local business centres for pedestrians, shoppers and persons working in or visiting such localities; and
(e) To encourage energy efficiency and energy conservation; and
(f) To promote the integration of commercial centres with-public transport and pedestrian networks and employment generating uses in close proximity to public transport; and
(g) To incorporate urban design principles in the development of commercial centres; and
(h) To ensure that the character, appearance and amenity of any new development (including alterations and additions) is designed to be compatible with those buildings which are heritage listed or located within a heritage conservation area or within the vicinity of a heritage listed property or a heritage conservation area; and
(i) To permit subdivision provided it is broadly compatible with existing patterns and other objectives of this zone; and
(j) To provide flexibility in the application of development standards and permit the Council to consent in particular circumstances where strict compliance with those standards would (in a specific case) be unreasonable or unnecessary or tend to hinder the attainment of the objects of the Act and this Plan.
17 Clause 22 of the DSLEP repeats the intent of cl 41C of the SPSO. The council considered the proposed development to be not satisfactory in relation to its interface with the adjoining residential development in terms of height, bulk and scale and considered the proposed development would unduly impact on adjoining residential properties in terms of overlooking and overshadowing.
18 Under cl 24 of the DSLEP the maximum FSR for the 3(a) zone is 3:1 as previously under the SPSO.
19 Under cl 70 of the DSLEP special consideration is to be given to development in the vicinity of heritage items such as the school opposite.
20 There is no height limit in either the SPSO or the DSLEP.
The proposal and its history
21 Development application No 0304/427was lodged with the respondent council on 31 May 2004 to demolish an existing commercial building and to erect a seven (7) storey mixed-use building with basement level parking and ground floor retail at the land.
22 No strata subdivision is proposed.
23 The proposal would contain twenty-two (22) residential units (now amended to twenty-one (21)) and a single retail tenancy at ground level off Liverpool Road (nominated on the plans as a restaurant/ cafe) with residential entry from Holmwood Avenue (residential). Vehicular access is proposed via Holmwood Avenue with parking on three basement levels. Fifty (50) car parking spaces are now proposed, with eighteen (18) on Level 3; seventeen (17) on Level 2 and fifteen (15) on Level 1.
24 The plans were amended on 30 August 2004 in respect of the gross floor area calculations; 21 October 2004 - letter, architectural plans; 18 November 2004 - architectural plans; 21 January 2005 - letter (responding to the councils letter dated 27 October 2004).
25 BCA classification of the amended building, as interpreted by the council, is for Classes 2, 7 & 10b.
26 The council considers the proposal to be defined as ‘Integrated Development’ given the main road frontage.
27 A maximum floor space ratio, (FSR) of 3:1 applies to the land and the Statement of Environmental Effects, (SEE) that accompanied the development application noted that the proposed FSR would be in excess of 3:1 by 17.5m2 or a FSR of 3.0247:1. The State Environmental Planning Policy No 1, (SEPP1) objection stated that the increase in FSR could be considered as minor and would not result in any drastic change to the height, bulk and scale of the proposed development, when compared to a development that complied. During the proceedings the FSR has been amended to comply with the 3:1 allowable and thus a SEPP1 objection to the density standard is not required.
28 The council by letter to the applicant dated 26 August 2004, sought verification of the FSR. In this regard, plans were forwarded highlighting the areas, which were included in the FSR calculations.
29 The council noted that corridors, garbage rooms and the undefined space to the east of the proposed restaurant/cafe were not included in the FSR calculations. In accordance with the definition of floor space contained within cl 44(1) of the SPSO, the council alleged that these areas should have been included for FSR calculation purposes.
Notification
30 The application was notified in accordance with DCP19 from 9 July 2004 to 23 July 2004 to sixty nearby owners and occupants and the council received eleven (11) objections, including two (2) petition style letters of objection. Six (6) people came to view the plans at the council.
31 Concerns related to perceived inconsistencies within the SEE, excessive height, traffic, loss of privacy, overshadowing, inaccurate plans (in terms of identified parking areas adjoining the proposed development), detrimental impact on the adjoining Fig tree, not in keeping with existing character, structural damage to adjoining properties, increase in traffic impacting on the safety of children from the school opposite, suggesting the development should be located nearer the stations (train) and the proposed development will devalue properties within the area.
32 The original development application was referred to the State Environmental Planning Policy No 65 (SEPP65) Urban Design Review Panel on 27 July 2004, however, at that stage the proposal was for 2-levels of parking and 5-storeys of commercial & residential development. The panel provided the following comments in relation to those plans:
- In General
Overall good building design and residential amenity is delivered. However, there are 2 outstanding issues:
- Internal circulation corridors require access to natural light and ventilation.
- Inadequate provisions for the existing large tree on the adjoining property on Liverpool Road. An arborist report is required to determine the requirements necessary to retain the tree.
At ground level it should be confirmed that the tree has sufficient space due to the building setback and plaza. The underground-car park has not provided any deep soil for the roots of the existing tree. Adequate deep soil must be provided to ensure the continued health of the tree. The drip line of the tree is considered the extent of the roots and this area should be protected from basement excavation unless specific arborist reports define otherwise. The scale of the existing fig tree is of particular contextual significance in assessing the impact of the bulk of this proposal. The retention of the fig tree is of utmost importance.
33 The council's landscape architect and the council's drainage and development engineer each provided comments. The landscape architect found the original plans not to be satisfactory and recommended a number of amendments. The council maintained that the applicant has not strictly adhered to the suggested amendments.
34 The drainage and development engineer provided comments that the proposal was satisfactory subject to conditions.
The council’s decision
35 By notice dated 16 March 2005 the council refused the application for the following reasons:
1. Pursuant to the provisions of Section 79C of the
Environmental Planning and Assessment Act 1979 the proposed development is not in keeping with the public interest as evidenced by the number of objections from local residents received.
2. Pursuant to the provisions of Section 79C of the
Environmental Planning and Assessment Act 1979 additional information and amended plans sought in Council correspondence dated 27th October has not been forthcoming in order to more appropriately assess the application.
3. Pursuant to the provisions of Clause 22 of the
Strathfield Planning Scheme Ordinance the proposed development does not constitute permissible development in the zone (refreshment rooms are not permitted within the 3(b) zone).
4. Pursuant to the provisions of Clause 32 and Clause 41B of the
Strathfield Planning Scheme Ordinance, the proposed development is inappropriate in bulk and scale, is out of character and gives rise to privacy and over shadowing issues. The proposed development is not in keeping with the existing height and scale of the nearby commercial development and as such a more appropriate transitional height between the proposed development and nearby development is necessary.
5. Pursuant to the provisions of Clause 44 of the
Strathfield Planning Scheme Ordinance the proposed variation to the FSR is not appropriate. Further, the FSR appears to have been incorrectly calculated and should include additional areas such as corridors, garbage rooms and the undefined space to the east of the proposed restaurant/cafe. An FSR of 3:1 does riot appear achievable given the site context, orientation of the land and the size of the subject site. The SEPP No 1 objection is therefore not well founded.
6. Pursuant to the provisions of Clause 59B of the
Strathfield Planning Scheme Ordinance, the impact of the proposal on the heritage item located opposite (Strathfield South Public School) has not been properly assessed as no statement of heritage impact has been submitted.
7. The objectives of the
Draft Strathfield Local Environmental Plan 2003 for the 3(b) Zone have not been met in particular objectives (a), (b), (c), (g) and (h). The proposed development does not contain an appropriate commercial content and the height, bulk and scale of the proposal is excessive.
8. Pursuant to the provisions of Clause 22 of the
Draft Strathfield Local Environmental Plan 2003 the proposed development does not adequately relate to adjoining residential development in terms of the proposals impact on adjoining residential properties with regard, to overshadowing, loss of privacy, height, bulk and scale and non-conformity with the existing and desired future character of development in the vicinity.
9. Pursuant to the provisions of Clause 24 of the
Draft Strathfield Local Environmental Plan 2003 the proposed FSR is not supported. Further, the FSR appears to have been incorrectly calculated and should include additional areas such as corridors, garbage rooms and the undefined space to the east of the proposed restaurant/cafe. An FSR of 3:1 does not appear achievable given the site context, orientation of the land and the size of the subject site.
10. Pursuant to the provisions of Clause 70 of the
Draft Strathfield Local Environmental Plan 2003 the impact of the proposal on the heritage item located opposite (Strathfield South Public School) has not been properly assessed, as a statement of impact on the heritage item has not been submitted. [Now provided]
11. Pursuant to the provisions of Council's Development Control Plan No.26 - Waste Management the following non-compliance occurs:
a. Clause 6.4.2 - General Principles (7) - The proposed waste storage room may have inadequate ventilation opportunities. The garbage facilities are not suitably located in terms of the potential for odour to permeate into the main hallway of the development.
12. Side and rear setbacks are inadequate in consideration of the building separation requirements as recommended in the Residential Flat Design Code. Requirement of 9m-12m equating to 4.5m-6m as the expected desirable side setbacks to meet the requirements for privacy, landscaping and overshadowing.
13. The extent and proximity of excavation for the proposed basement levels near the base of the existing large fig tree on the adjoining eastern site may have a detrimental impact on that tree.
14. There is no deep soil planting opportunities provided on site to provide screening and add to the amenity of the residential apartments.
15. The proposed apartment sizes do not meet the minimum apartment size requirements as recommended by the Residential Design Flat Code. The amended plans No. 5234-DA04 (dated 27/5/04) as received on 18th August 2004 indicates the top floor two-bedroom apartment has a gross floor area of 58m2 and level 3 has four apartments with a total gross floor area of 195m2.
16. The proposed development will give rise to excessive overshadowing of the residential dwellings situated to the south in Holmwood Avenue.
17. Solar access to the living areas of the eastern and western units is unsatisfactory given the recessed nature of the external walls and fin walls.
18. No loading facility is provided to cater for non-residential use. A loading facility would appear necessary given the lack of available on street parking facilities due to the subject sites location on the corner with a main road.
The hearing
36 The appeal was filed on 28 January 2005.
37 At the hearing the court heard evidence on behalf of the respondent council from:
· Mr N White, consultant town planner;
· Mr D Hazeldine, landscape architect;
· Mr L Tropman, heritage consultant;
· Mr D McQuat, resident of No 12 Manning Avenue, Strathfield South;
· Mr M Bensen, resident of No 3 Holmwood Avenue, Strathfield South, [Note: Exhibit 1, Objection dated 21 July 2004, pp 293-5]
· Mr C Savoca, resident of No 9 Holmwood Avenue, Strathfield South, [Note: Exhibit 1, Objection dated 23 July 2004, pp 284-291]; and
· Other residents including, Mr D Figueiredo, of No 6 Holmwood Avenue; Mr L D’Souza: Mrs Grac, of No 5 Holmwood Avenue; Mr V Di-Mentio, of No 3 Manning Avenue; Mr L Magyar, No 7 Manning Avenue, who gave evidence on site.
38 On behalf of the applicant evidence was given by:
· Mr S Layman, chartered architect and town planner; and
· Mr J Graham, heritage consultant.
39 Mr Nigel White, Consultant Town Planner, prepared the planning report and Mr P Johnston, town planner of Strathfield Council prepared the statement of basic facts.
The issues
40 On 28 September 2005 the council filed a statement of issues:
l. The proposed development is unacceptable in that it constitutes an over development of the site in terms of bulk and scale and in that regard is out of character with the existing height and scale of the adjacent commercial and residential development.
- Particulars
(a) The proposed development is 7 stories in height and will be visually obtrusive and dominating in the existing and future streetscape context. It is noted that the buildings to the east of the development are currently three stories in height and single storey dwellings are located to the south.
(b) The site is adjacent to a "Main Road", being Liverpool Road. In that regard the proposed development is inconsistent with Clause 32(a) of the SPSO 1969 having regard to the unacceptable "probable aesthetic appearance" of the development (being visually obtrusive and dominating in the existing and future streetscape context).
(c) Having regard to the excessive bulk and scale of the development the development is also inconsistent with objectives 11(e) and (f) of the draft Strathfield Local Environmental Plan 2003 ("the draft LEP 2003").
- Particulars
(a) The subject land immediately adjoins a residential zone to the south (rear) and east.
(b) The dwellings situated to the rear of the subject land will be adversely affected by overshadowing of the proposed development. In that regard the shadow diagrams indicate that properties to the south will be overshadowed for much of the day during the winter solstice.
(c) The interface between the proposed development and the residential zone is unsatisfactory given the proximity, height and scale of the proposed building and the associated overshadowing.
(d) Having regard to the particulars referred to above the proposed development is inconsistent with Clause 41C(a), (c), and (d) of the SPSO 1969 and Clause 22(a), (c), and (d) of the draft LEP 2003.
- Particulars
a. The Applicant contends in the Statement of Environmental Effects submitted with the development application that the floor space ratio is 3.0247:1. It appears, however, that the Applicant has incorrectly calculated the floor space ratio and has not included additional areas such as corridors, garbage rooms and unidentified space to the east of the proposed restaurant / cafe. In that regard it would appear that the floor space ratio is in excess of 3.0247:1 which is contrary to the development standard in Clause 44 of the SPSO 1969 (and also Clause 24 of draft LEP 2003).
b. The State Environmental Planning Policy No.1 objection lodged in relation to the non-compliance with Clause 44 of the SPSO 1969 does not demonstrate that the development standard is unreasonable or unnecessary in the circumstances of the case.
- Particulars
(a) The "Strathfield South Public School" located at 457 Liverpool Road, Strathfield South is identified as a heritage item (inventory number 225) within Schedule 9 of the SPSO 1969 and is also identified as a heritage item within Schedule 6 of the Draft Strathfield Local Environmental Plan 2003 ("the Draft LEP 2003"). "Holmwood Avenue Conservation" (2-36 and 1-33 Holmwood Ave) is proposed to be identified as a "Heritage Conservation Area" in Strathfield Draft Local Environmental Plan No. 105 (SHI No. 2430338).
(b) The Heritage Impact Statement prepared in relation to the proposed development does not provide an adequate basis for the conclusion that the proposed development will not have an unacceptable impact on the heritage significance of the Strathfield South Public School or the Holmwood Avenue Conservation Area. In that regard the proposal is inconsistent with Clause 59D and 59B of the SPSO 1969.
(c) Having regard to the non-compliances with the SPSO 1969, the proposed development is also considered to be inconsistent with Clauses 66, 70, 71 and 72 and Clause 21 objective (h) of the objectives for the "Local Business 3B Zone" in the draft LEP 2003.
- Particulars
(a) Scale: the proposed development is not consistent with and does not suit the prevailing scale of Liverpool Road and is not considered to be a suitable response to the scale of existing surrounding developments.
(b) Density: the density of the proposed development is considered excessive and inconsistent with the existing density in the area.
(c) Amenity: the proposed development will have an unacceptable amenity on the adjoining residential development to the rear having regard to the bulk and scale of the development, the height and the associated overshadowing impacts.
(d) The proposed development will also have an unacceptable impact on the amenity of future residents of the residential flat building in that solar access to the living areas of the eastern and western units is unsatisfactory given the recessed nature of the external walls and fin walls.
(e) The building separation requirements as recommended in the residential flat design code are for 9 - 12 metres which equates to a 4.5 - 6 metre expected desirable side set back to meet the requirement for privacy, landscaping and overshadowing. The proposed development does not have side setbacks (as the building is proposed to the edge of the side boundaries of the site) and has a setback from the southern boundary of 1.6m. In that regard the proposed development does not comply with the recommended set backs in the RFDC.
(f) The proposed apartment sizes do not meet the minimum apartment size requirements as recommended by the RFDC. In that regard the amended plans (received 18 August 2004) indicate that the top floor two bedroom apartment has a gross floor area of 58m2 and level three has four apartments with a total gross floor area of 195m2.
- Particulars
(a) The proposed waste storage room has inadequate ventilation opportunities.
(b) The garbage facilities are not suitably located in terms of the potential for odour to permeate into the main hallway of the development.
- Particulars
- (a) Deep soil landscape areas for medium/tall size tree planting and continuous screen/shrub planting is required along the full extent of the southern common boundary and the south eastern site corner to provide buffer planting between the adjoining single dwelling residential land uses. The on-site detention system location along the southern boundary conflicts with this requirement for deep soil planting (ie landscaping on natural ground, which is not over any built structure or slab). The OSD system and pits are to be relocated in an alternative location.
8. The proposed development will have an unacceptable impact on the existing large Fig tree on the adjoining eastern site having regard to the extent and proximity of the evacuation for the proposed basement levels near the base of the existing fig tree.
9. The proposed development is unacceptable in that no loading facility is provided to cater for the proposed non-residential use. In that regard a loading facility would appear necessary given the lack of available on street parking facilities due to the location of the subject site on the corner of a main road.
10. The proposed development is not in the public interest, having regard to the submissions received opposing the proposed development.
41 The following emerged as the salient issues:
· Design;
· Amenity;
· Heritage; and
· Impact on the Fig.
Amended plans
42 On the second day of the hearing the applicant requested an adjournment to permit it to amend the plans following evidence of the town planning witnesses, and of Mr Tropman the council’s heritage expert. Unit 4 on the first and second floors was amended to ensure that the proposal would fit beneath a building height plane constructed at 45 degrees from the top of a 1.8m high fence on the common boundary with No 2 Holmwood Avenue. The purpose of this amendment was to reduce the bulk and scale when viewed from No 2 Holmwood Avenue and to ensure that some sunlight would penetrate that neighbouring property from the equinox through the summer months. This amendment caused the number of units to be reduced from twenty-two (22) to twenty-one (21).
43 The Court granted the adjournment and gave directions. The Court also asked the parties to agree on costs thrown away by the adjournment.
44 When the matter returned to the Court on 3 February 2006, Messrs D McQuat, M Bensen, and C Savoca, gave evidence concerning the amended plans and stated their respective concerns. Their views echoed the views of those residents who gave evidence on the site inspection, concerning the original proposal.
45 Mr McQuat stated that he has been:
- …an owner-occupier since 1995, and [has a] preference to live in a street with a Federation or Post Federation [ambiance] and although some medium density development to two storeys in height has taken place in recent times, this has been generally in keeping with the character of the residential precinct. The proposed seven-storey development, 100m distant is not in keeping with the area.
This is a ‘village precinct’. The upper storeys of the proposal would be in plain view from our front garden and [this visual impact] is not welcomed. Both Holmwood and Manning [Avenues] are narrow and with the introduction with 22 residences [now 21] there would be parking issues especially with up to three cars per residence.
There is a veterinary business at the top of our street [Manning Avenue] and that has more employees than parking spaces. Half a dozen employees park in our street. The proposal would put pressure on parking in the area.
An artist’s impression of the proposal has been posted on the applicant’s web site and the ‘edifice’ would tower over all surrounding structures and not fit in.
Lastly, if this were to go ahead it would set a precedent and would be not in the best interests in our community.
46 Mr Bensen stated that his main concern was for the:
- …size of the building and the number of residents [crammed] on that small block. It would now be 21 units and there would be around 40 to 70 people on that lot. The development application had not taken into account any landscaping and people will be forced onto balconies and people can look over our places.
There would be traffic problems and all traffic from North, South and West would use Holmwood Avenue - a narrow street. . With two cars parked on either side drivers have to give way.
The biggest problem is that this would set a precedent. The seven-storey proposal would not be appropriate. Also the block opposite could be developed and this would [exacerbate] the problem. If approval were granted it would be “…open slather for developers.” Reasonable development would be acceptable - say three-storeys high. It is for a de-facto block of flats and the shop underneath is token.
47 When asked whether the amendments do anything to ameliorate his concerns, Mr Bensen said the present proposal would have the “…same problems as the original development”.
48 Mr Savoca stated words to the effect that:
- The original application is offensive and the amended proposal is offensive - as there has been no major change. It is basically the same development. We live in a community and “…we are now tackling a corporation that is interested in money.” I would like to keep the area as a family area. Traffic flow on Holmwood is intense. The three storeys of car parking won’t be utilised and there will be further congestion of Holmwood Avenue. The proposal would make no aesthetic contribution to the street and consultation with us has been minimal. The proposal has been imposed on us. There is nothing positive to say about the development. All the original objections I have made still stand.
The evidence and findings
Design
49 Issue 1 refers to overdevelopment and questions of bulk and height. As was confirmed in the joint statement in Exhibit 28, prepared by Messrs Layman and White, the amended proposal would now comply with the 3:1 FSR under either the SPSO or the DSLEP. Thus, there is no need of a SEPP1 objection with respect to FSR, provided the FSR is 2.93:1 as indicated by the hatched areas shown on the A4 plans referred to in the joint statement. This appears to be correct and I accept in the circumstances of this case, that the FSR now complies. A condition is imposed to that end. There is no height limit under the SPSO or the DSLEP so height is a product of the FSR and coverage of the proposed building.
50 It was the council’s case that the proposal would be visually obtrusive and dominant in the existing and future streetscape context, mainly in Holmwood Avenue. This was a point stressed by local residents. In this regard, Mr Wright, for the council, submitted that the site is very constrained and the applicant by seeking a maximum FSR of 3:1 is proposing a development that would be dominant in the area. He submitted that the proposal is opposite a heritage item being the Strathfield South Public School and near the “lively homogenous area” of Holmwood Avenue. Mr Wright submitted that the council is concerned to see there is a reasonable transition between the proposal and nearby development. He submitted that the evidence of the local residents was “…well considered and reasonable” and the dwellings in the nearby 2(a) zone would be most directly impacted.
51 Mr Hemmings submitted that the amended proposal was now numerically compliant with the FSR standard and would be entirely consistent in terms of the scale of development anticipated for this land under the current planning regime and draft planning regime. He stressed that the amended proposal “…steps back to address the potential impacts such as overshadowing and visual bulk”.
52 Mr Hemmings also submitted that the amended proposal would be entirely consistent with the thematic significance of the heritage listed school and would not detract from its significance, which places importance on the grove of trees along the Liverpool Road frontage that visually separates the school and the street.
53 Mr Layman, for the applicant, assessed the original proposal in its context and having regard to the planning controls and principles, and concluded that the proposal is “…highly consistent with the desired future character of the 3(b) zone. The development is therefore appropriate in my view. There are no unreasonable impacts on the environment.”
54 Mr White concluded that the original application should be refused:
- The proposed development is an overdevelopment of the site, is not appropriate in the streetscape context and will adversely affect neighbouring residents in Holmwood Avenue.
The proposed development is out of character with existing development in the commercial precinct and the residential development in Holmwood Avenue.
The proposal does not provide adequate levels of amenity to future residents on-site.
55 I am satisfied that with the amendments made during the course of the proceedings, to lower the scale of development near the southern boundary, the proposal now would be satisfactory in regard to its relationship to the dwellings in Holmwood Avenue and in particular No 2 Holmwood Avenue. There would still be a change of scale between the mostly single-storey, mainly Federation style dwellings, in Holmwood Avenue, however, that change in scale is one that must be anticipated under the zoning. The gross floor area of the proposal is a function of the FSR of 3:1 and the site size. I have not given significant weight to the submissions of Mr Wright that the site is constrained. A larger site would have the potential for a larger building erected on it to a FSR of 3:1. The site has the advantage of two street frontages thereby facilitating vehicular and pedestrian access and giving a longer frontage length for access to light and ventilation. I would not refuse the application for reasons of overdevelopment and bulk and height.
56 Also, I am satisfied that the heritage significance of the Strathfield South Public School would not be unduly compromised by the proposal. The grove of trees along the Liverpool Road frontage of the school would serve as a buffer between the proposal and the school. I took particular regard for this relationship on the site inspection and I am satisfied that the proposal would be sufficiently remote from the school as to not be of concern. I would not refuse the application for this reason.
57 I note that the council at its meeting held on 6 December 2005 resolved to delete from Schedule 3 of the Strathfield Heritage Local Environmental Plan the Holmwood Avenue Conservation Area, including Nos 2-36 and 1-33 Holmwood Avenue, [Note: Exhibit 27 p 3]. Thus the consideration of the relationship between the proposal and the dwellings in Holmwood Avenue is one that would be based on urban design principles rather than heritage principles. I am satisfied from an urban design perspective the proposal is satisfactory and one that is anticipated by the planning controls.
Amenity
Internal and external amenity
58 I am satisfied that the amenity of the amended proposal both internally and externally is acceptable. I am satisfied the amended proposal would be sufficiently compatible with nearby residential, commercial development and the school as to not warrant refusal on this ground.
Solar access
59 Clause 41C(d) of the SPSO provides that development should not inhibit reasonable solar access to existing buildings within the residential zone during the hours of 9.00am to 3.00pm, on the winter solstice. The stepping back of the proposal in the southeastern corner of the land, under a 45-degree plane off the top of the fence with No 2 Holmwood Avenue, would ensure that that property would retain some sunlight during the summer months from the equinox onwards, particularly in the mornings. During the winter months there would be some overshadowing of the dwellings to the south of the land. However, given the intensive nature of the development of the business zone under the SPSO, I consider this outcome to be a reasonable and the compromise struck is satisfactory, and an improvement over that originally proposed. I would not refuse the application for this reason.
60 Messrs Layman and White found if operable glazing were provided to Unit 3, that sufficient sunlight would penetrate to most of the units to comply with normal requirements.
Heritage
61 Mr Tropman, on behalf of the council, concluded that the proposal would not be acceptable for reason that:
- …the proposed development will be intrusive in the setting;
…the proposed development is too high with respect to adjacent commercial strip in Liverpool Road;
…the proposed development is too high with respect to adjacent residential properties in Holmwood Avenue;
…a development with the following characteristics would be more acceptable given the site constraints:
· five levels in height to Liverpool Road;
· more gradual transition zone of building zone adjacent to residential properties; and
· increased setback or reduced height (from four down to two levels) adjacent to Holmwood Conservation Area.
62 Mr Graham, on behalf of the applicant, concluded in this regard that the proposal:
- Will not impact on the heritage value of the school. While it will have some impact on 2 Holmwood Avenue, the proposed building has been designed to minimise this impact by providing an appropriately scaled interface. It will have little impact on the heritage value of the group of houses that constitute the proposed Holmwood Avenue Conservation Area. The materials proposed for construction are considered appropriate as they are of the same general palette as used in the surrounding development.
63 Certainly, the proposal, would relate better to nearby dwellings and the school if the prescriptions outlined by Mr Tropman in the dot points above were followed. However, that is not the planning regime that applies to the land. If the council wanted to follow that prescription, it would amend the SPSO under Part 3 of the Environmental Planning and Assessment Act 1979, to reduce the scale of development permitted along the southern side of this shopping strip. Such a change would then be publicly advertised and properly considered under the Act. It is not the role of the Court, under Part 4 of the Act, to plan the area and to reduce the intensity of development. During the hearing the interface of proposal with the dwellings in Holmwood Avenue has been improved by stepping back in part and is sufficiently distant from the school as to be acceptable. I would not refuse the application for reason of the impact of the amended proposal on the heritage significance of the area.
Impact on Fig
64 The parties agreed that the proposal would be sufficiently remote from the Fig tree on the adjoining property to the east, as to not adversely impact on its health and vigour. This did not loom large as an issue in the proceedings, and would not be a reason to refuse the application.
Car parking
65 The experts agreed that there is adequate car parking under DCP4.
66 For the above reasons, the appeal is upheld.
Conditions
The conditions are those in Exhibit 7 as amended during the proceedings. The proposal is for twenty-one (21) units, amended from twenty-two (22) as originally proposed. It is now proposed to provide car parking in the basement for fifty (50) cars.
Costs
67 I understand that the parties have reached agreement on costs thrown away by the adjournment in connection with the amended plans.
Orders
68 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 0304/427, lodged with the respondent council on 31 May 2004 to demolish an existing commercial building and to erect a seven (7) storey mixed-use development with basement level parking and ground floor retail at Lot 100, DP790748, being Nos 454-458 Liverpool Road, Strathfield South, is approved subject to Conditions 1 to 133 in Annexure A.
3. The exhibits, except for Exhibits A, E, G, H, J, K and 7 are returned.
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site atS J Watts
Commissioner of the Court
sw
0
0
6