Innovate Architects v Sutherland Shire Council

[2017] NSWLEC 1067

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Innovate Architects v Sutherland Shire Council [2017] NSWLEC 1067
Hearing dates:	30 January 2017
Date of orders:	24 March 2017
Decision date:	17 February 2017
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	Directions at [73]
Catchwords:	DEVELOPMENT APPEAL: Appeal against refusal of amendment application to a residential flat building – appropriateness of increased floor area – adequacy of side setback – building separation and impact on adjoining site – streetscape presentation – bulk and scale
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy 65: Design Quality of Residential Apartment Development
Cases Cited:	Hurley v Sutherland Shire Council [2016] NSWLEC 1630 Progress and Securities v North Sydney Municipal Council [1998] 66LGRA236 Walton v Blacktown Council [2006] NSWLEC451 Gann v Sutherland Shire Council [2008] NSWLEC 1228
Texts Cited:	LEC Practice Note Class 1 Development Appeals Apartment Design Guide
Category:	Principal judgment
Parties:	Innovate Architects Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: R O’Gorman Hughes (Respondent)   Solicitors: S Kondilios, Hall and Willcox (Applicant) J, Amy, Sutherland Shire Council (Respondent)
File Number(s):	2016/00216670
Publication restriction:	No

Judgment

1. COMMISSIONER: In March 2016 Sutherland Shire Council approved a residential flat development at 66-68 Ewos Parade, Cronulla. The development is currently under construction. Following approval the applicant has sought amendments to the design of the apartment building, in particular at the level 4 of the building, to allow the creation of an additional apartment. Following the refusal of the amendment application by the Council, this appeal centres on the acceptability of the changes to the approved development to increase floor space and enclose the approved balconies adjacent the development northern boundary.

2. The matter commenced by way of a conciliation conference, however no agreed outcome was able to be reached and the conciliation was terminated on 9 November 2016.

3. Prior to the commencement of the hearing, through the joint conferencing of experts, some minor matters in relation to car parking were agreed, subject to the imposition of agreed conditions. This condition is included in the Draft Conditions of Consent (Exhibit 3).

4. The applicant also seeks to alter the nomination of adaptable units from that which is contained in the current consent. Councils expert planner agrees the floor plans of the two units intended to be transposed are identical, and subject to confirmation of compliance with the relevant standard raises no objection to the change.

5. At the commencement of the hearing the applicant abandoned the increase in floor area sought at the ground floor, which was not objected to by the Council. The removal of these works is incorporated in an updated set of architectural plans that the Court has allowed the applicant to rely on (Exhibit C).

6. In hearing the appeal the role of the Court (cl 39 of the Land and Environment Court Act 1979 (LEC Act)) is to assess and determine the development application based on the evidence in the proceedings and the amended plans.

7. The issues for the Court to determine are:

1. Whether the reduction in separation between habitable rooms and the boundary with the property to the north, that results from the changes at level 4, is acceptable; and

2. Whether the exceedance of the floor space control is appropriate and justified in the circumstances of the case.

8. Following consideration of the evidence and the relevant controls I find that the amendments sought by the applicant, in relation to the infilling of the balconies on level 4, do not meet the requirements of the relevant controls and warrant refusal. As such at the conclusion of the judgement directions are made to remove these components from the amendment application to allow consent to be granted to the remaining changes that are agreed between the parties.

The site and its context

9. The subject site has an area of 1,171m² and is legally described as Lot A & B in DP 386700. The site is currently a construction site implementing the existing approval for the site which provides for the construction of a six storey residential flat building containing 10 residential units and two levels of basement car parking.

10. The site is immediately adjacent Shelly Park and to the north of the site is a two storey brick residential flat building containing 4 strata units (64 Ewos Parade), with a further new residential flat building under construction to the north (60 - 62 Ewos Parade). This is characteristic of the locality which is a mixture of older style residential flat buildings with varying heights and new development under construction.

Existing Consent:

11. The applicant has approval, through DA/15/041, for construction of a six storey residential flat building containing 10 units and strata subdivision. This consent has commenced.

12. Council submits that as part of the existing consent the applicant successfully argued a variation to the height control on the basis the additional height was acceptable because it enabled a reduced building footprint and greater setbacks to the side boundaries.

Planning Controls:

13. Section 79C(1)(a) of the Environmental Planning and Assessment Act1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

14. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy.

15. In accordance with the requirements of State Environmental Planning Policy 65: Design Quality of Residential Apartment Development (SEPP 65), and as required by the Environmental Planning and Assessment Regulation 2000, a design verification statement was lodged by Cameron Jones of Innovate Architects, registered architect (7143). Clause 28 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl 28(2)(c)).

16. Relevantly the ADG states that Building Separation is measured from the outer face of the building envelopes, which include balconies (Section 2F). The minimum separation distances included in the Code are:

Five to eight storeys (approximately 25m)

•18m between habitable rooms/ balconies

•12m between habitable and non-habitable rooms

•9m between non habitable rooms

17. The aims of the building separation distances are:

•To ensure new development is scaled to support the desired future character with appropriate massing and spaces between the building;

•Assist in providing residential amenity including visual and acoustic privacy, natural ventilation, sunlight and daylight access and outlook;

•Provide suitable areas for communal open spaces, deep soil zones and landscaping.

18. In relation to adjoining sites, Section 2F of the ADG states:

Where applying separation to buildings on adjoining sites, apply half the minimum separation distance measured at the boundary. This distributes the building separation equally between the sites.

19. Sutherland Shire Council Local Environmental Plan 2015 (LEP 2015) applies to the site. Relevant to this appeal LEP 2015 has the following aims (cl 1.2(2)):

…

(b) to establish a broad planning framework for controlling development, minimising adverse impacts of development, protecting areas from inappropriate development and promoting a high standard of urban design,

(c) to protect and enhance the amenity of residents, workers and visitors in all localities throughout Sutherland Shire,

.…

(i) to meet the future housing needs of the population of Sutherland Shire

20. Pursuant to LEP 2015 the site is zoned R4 High Density Residential. The objectives of the R4 zone are as follows:

•To provide for the housing needs of the community within a high density residential environment.

•To provide a variety of housing types within a high density residential environment.

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

•To encourage the supply of housing that meets the needs of the Sutherland Shire’s population, particularly housing for older people and people with a disability.

•To promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features.

•To minimise the fragmentation of land that would prevent the achievement of high density residential development.

21. The proposal is defined as alterations and additions to a residential flat building and is permissible, with consent, in the zone.

22. Pursuant to cl 4.4 Floor Space Ratio (FSR), the maximum FSR for buildings on the site is 1.5:1. The proposal has a maximum FSR of 1.56:1, an exceedance of the control by 75.4sqm.

23. The objectives of cl 4.4 Floor Space Ratio are:

a) to ensure that development is in keeping with the characteristics of the site and the local area,

b) to ensure that the bulk and scale of new buildings is compatible with the context of the locality,

c) to control development density and intensity of land use, taking into account:

­ –the environmental constraints and values of the site, and

­ –the amenity of adjoining land and the public domain, and

­ –the availability of infrastructure to service the site, and

­ –the capacity of the road network to accommodate the vehicular and

­ –pedestrian traffic the development will generate, and

­ –the desirability of retaining the scenic, visual, and landscape qualities of the area.

The objectives relevant to the appeal are (a) and (b) and (c) (ii).

24. LEP 2015, at cl 6.16 provides specific standards in relation to urban design. The consideration of this clause is a mandatory precondition to the grant of consent. Relevant to these proceedings the clause states:

(1) In deciding whether to grant development consent for any development, the consent authority must consider the following:

(a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development,

(b) the extent to which any buildings are designed and will be constructed to:

(i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and

(ii) contribute to the desired future character of the locality concerned,

(c) the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain,

(d) the extent to which the natural environment will be retained or enhanced by the development,

(e) the extent to which the development will respond to the natural landform of the site of the development,

(f) the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas,

…

25. Specific urban design standards in relation to residential development are provided at cl 6.17 which states:

In deciding whether to grant development consent for development for the purposes of residential accommodation the consent authority must consider the following:

(a) the extent to which recognition has been given in the design of the development to the needs of the diverse and changing population of Sutherland Shire,

(b) the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, will be minimised,

(c) the extent to which the quality of the streetscape concerned will be improved by the development,

(d) the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities,

(e) the extent to which any adverse impacts of the development on adjoining land, in terms of size, bulk, height, scale and siting, will be minimised,

(f) the extent to which the residential accommodation concerned integrates with a well-designed landscaped setting,

(g) any opportunities for the provision of affordable housing.

26. Council has prepared, but not yet adopted, draft policy/DCP 2015. This policy is intended to implement LEP 2015 which was gazetted in June 2015.The Council argues that this policy should be given significant weight in the assessment of the application before the Court under s79C(1)(a) of the Act (Exhibit 7) and consistent with the principles established in Stockland Developments v Manly Council at [92] on the basis that:

1. There is no evidence before the Court that demonstrates that Council has departed from the application of the controls, in particular the setback standard;

2. The policy has been adopted by Council and utilised in the assessment of development applications for over a year; and

3. The draft policy/ DCP setback control of 9m is consistent with that required by the ADG.

27. In submissions Mr Kondilios referred to Hurley v Sutherland Shire Council [2016] NSWLEC 1630 in which considered the status of draft policy/DCP 2015 and concluded at [28]

...draft policy/DCP 2015 has not come into effect as an environmental planning instrument. Given this it is not a matter for consideration as a Development Control Plan under s79C(1)(a)(iii).

However at [37] an assessment of the standing of the Councils draft policy/DCP 2015 and the weight of the document in the assessment of development applications concluded that:

[draft policy/DCP 2015] may be used to inform process of assessing the likely impacts of development under s79C(b) and the suitability of the site under s79C(c) but not given significant weight in the determination of the application.

28. Exhibit 7 indicates that the draft policy remains to be finalised in accordance with Environmental Planning and Assessment Regulation 2000. In assessing this modification application I have adopted the approach outlined at [27] and utilised the draft policy/DCP 2015 to inform my assessment.

29. The Court heard heritage evidence from Mr Jeff Mead, for the applicant, and Mr Brian McDonald, for the Council. Both experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention as detailed in [6]. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 2.

Public submissions

30. The assessment of the original development application involved public notification to the surrounding neighbourhood. No submissions were received.

31. At the commencement of the hearing an onsite view was undertaken by the Court. At this time the Court was addressed by a resident of the adjoining apartment building. Her concerns with the application can be summarised as:

1. The precedent effect of an approval that included an exceedance in height and floor space control;

2. The increase in overshadowing of Shelly Park experienced as a result of the exceedance of the height control;

3. That the proposed enclosure of the balconies will increase in the bulk of the building, and is not compliant with the setback requirements.

The issues raised by the resident were the subject of expert evidence and are discussed below.

Building separation and amenity

32. The proposal seeks to replace the approved planter boxes and balcony areas on level 4 with addition bedrooms which will result in the creation of an additional unit. The additional bedrooms result in internal habitable building area encroaching into the approved side setback to a minimum distance of 6.29m to the common boundary with 64 Ewos Parade.

The modification also seeks to alter the architectural expression of the building by continuing the louvered facade treatment of the ‘middle’ of the building one storey higher. The changes sought demonstrated by the following extracts of the approved and modification plans:

Approved Development – Level 4

Modification Application – Level 4

33. The planning experts agree that:

1. As a result of the proposed works habitable space will be located three metres closer to the common boundary with 64 Ewos Parade, although the setback of the building itself is not altered from that which has been approved;

2. Subject to detailed design of the proposed louvered screens proposed to the windows of the north facing bedrooms of the amended fourth floor, there would be no privacy impact on a future residential development of 64 Ewos Parade.

34. Council contends the modification to the floor plans offends the design principles of SEPP 65, predominately principal 1: context and neighbourhood character; and principal 2: Built form and Scale. Principal 6: Amenity is also relevant to the assessment of the modification application.

35. The ADG applies to the assessment of the modification application. Relevantly in section 2F the ADG states:

Amenity is improved through establishing minimum distances between apartments within the site, between apartments and non-residential uses and with boundaries to neighbours. Building separation ensures communal and private open spaces can have useable space with landscaping, deep soil and adequate sunlight and privacy. Within apartments, building separation assists with visual and acoustic privacy, outlook, natural ventilation and daylight access.

36. For a development of five to eight storeys the separation distance sought by the ADG is 18m, with building separation increasing proportionately with height for the stated reason to achieve amenity and privacy for building occupants and a desirable urban form.

37. Mr O’Gorman Hughes for the Council submits that the appropriate outcome on the subject site is the provision of 50% of the building separation sought by the ADG, so as to not impede the future redevelopment of the adjoining site to the north (64 Ewos Parade). This position is put firmly by the Council on the basis that the subject site is unconstrained, and has been granted a reduced setback to Shelly Park. In contrast 64 Ewos Parade is a single lot with a reduced width of approximately 15m that, as a result of the pattern of consolidation, will be developed as a single lot. It is agreed between the parties that number 64 has no potential for further amalgamation.

38. In the alternative Mr Kondilios for the applicant puts that the modification application has been developed in consideration of the potential redevelopment of 64 Ewos Parade. It is his submission that a feasible redevelopment option is available to the site, and the feasibility is not impacted by the reduced setback sought by the modification application. Mr Mead, in his oral evidence supports this view stating that mandating setbacks in accordance with the ADG and Councils draft DCP/policy on 64 Ewos Parade would have the effect of sterilising the site.

39. In his evidence Mr McDonald states that given number 64 Ewos has a frontage of approximately 15m, if the site was to be developed as a residential flat building the most that would be provided as side setbacks on both sides is 5m. In contrast to the modification he argues that the approval on the 60-62 Ewos Parade, which adjoins 64 Ewos Parade on the northern side provides a more balanced approach, whilst maintaining the development potential of 64 Ewos. The development at 60-62 Ewos Parade is compliant with the FSR and provides a minimum setback for the third to sixth levels of the building of 9.47 metres. It is Mr McDonald’s conclusion that this setback affords the opportunity to relax the northern setback of a future development on the severely constrained site of 64 Ewos Parade, where habitable rooms and balconies are most likely to be located in contrast with the proposed 6.29m to bedrooms that would result from the modification application being approved.

36. As part of Mr Mead’s evidence he referred to a schematic design prepared by the applicant to demonstrate a feasible development option for 64 Ewos Parade (Exhibit 8). This design proposes a three metre side setback, and provides no habitable rooms facing the common boundary. Any windows are oriented in an east or west direction. This design approach was referred to in the hearing as a ‘defensive façade’. In terms of the achievement building separation such an approach would provide a separation of approx. 9m between the building wall of any development at 64 Ewos and the bedrooms proposed by the modification application.

37. It is Mr Mead’s evidence that the modification application does not change the setback of the building to the northern boundary, and therefore does not affect the building separation. He states that, in his opinion, the question that needs to be answered by the assessment of the modification is whether the enclosure of the balconies at the fourth floor is contrary to the objectives for setback and separation. On the basis of this approach to the assessment he concludes that the proposal performs better than the approval with regard to the visual and acoustic privacy relationship with the development to the north and will not adversely affect natural ventilation, sunlight, daylight access or outlook.

38. In the alternative Mr McDonald’s evidence is that whilst the approved balconies do not comply strictly with Part 2F of the ADG, in providing the equitable 9m share of the 18m separation distance that is required between habitable rooms and balconies above 4 levels. However, the north facing internal habitable rooms (as approved) are setback 9m from the northern boundary. Therefore the approval provides an appropriate separation from the boundary to the living zone of the development. As approved the balconies would provide an equitable 6m share of the 12m separation between habitable rooms or balconies on the subject site if a future development on 64 Ewos Parade places only non-habitable rooms on the south side of its development. In contrast the amendment offends the aim of the Part 2F as it does not ensure appropriate scale and spaces between buildings or assist in providing residential amenity for the residents in terms of acoustic or visual privacy or outlook.

39. It is Mr McDonald’s evidence that placing bedrooms on the north face of the building necessitates an external louvre screen, to provide adequate shading and privacy to both properties. By comparison the approved development provides bedrooms recessed behind balconies with a 1200mm deep planter at the edge. It is his evidence that this arrangement addresses sun control and privacy, as well as providing a pleasant outlook with a superior level of amenity.

40. In contrast it is Mr Mead’s evidence that the proposed bedrooms at the fourth floor do not conflict with objectives of the relevant planning provisions. He concludes that the eastern and western most bedrooms on the fourth level have a dual orientation which provides for high levels of amenity and that the single orientation dwellings with continue to receive high levels of natural daylight and ventilation due to the extent of glazing provided. It is his evidence that it is not unusual that bedroom windows on side elevations are treated with screens or high sill windows to reduce overlooking and ensure visual privacy.

41. In submissions Mr Kondilios explored alternative fenestration arrangements for the both the dual and single aspect bedrooms on level four. The planning experts concluded that alternatives such as deletion of the northern window (on the dual aspect units (9 &10) or an increase in sill height to 1.6m, whilst providing additional privacy to the adjoining properties, would reduce the infiltration of light to these rooms. Whilst it was Mr Meads evidence the amenity of the rooms remain acceptable, he concluded that the louvered screens remain the preferred outcome and would be a lighter treatment in the architectural form of the building than would result from a solid wall with highlight windows.

Findings

46. With regard to the relevant controls and the evidence of the experts in this case, I prefer the conclusions of Mr McDonald that the proposed development, if approved would increase the constraints on redevelopment of 64 Ewos, and does not meet the objectives of the ADG, in particular the aims of Building separation detailed in Part 2F.

47. The evidence of Mr Mead’s does not give weight to the vegetated planters on the edges of the approved balconies at the fourth floor. These have the effect of creating a visual buffer and reducing the effective width of the terrace area. This would have the effect of encouraging the predominant use of the deck to focussed on the area located adjacent the dining area at a further setback to the common boundary and with dual orientation. This can be seen in the extract of the two plans at [32].

48. The Court has established planning principles to assist when making planning decisions where policies are expressed in qualitative terms and allow for more than one interpretation. The objectives in Part 2F of the ADG, and the objectives of clause 4.4, in particular (c)(ii) are such controls. The relevant planning principle for the assessing amenity impact on neighbouring properties is found in Davies v Penrith City Council [2013] NSWLEC 1141, extracted below:

Criteria for assessing impact on neighbouring properties

The following questions are relevant to the assessment of impacts on neighbouring properties:

•How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained?

•How reasonable is the proposal causing the impact?

•How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact?

•Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours?

•Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?

49. In applying these principles it is my conclusions that:

1. the modification application will change the amenity of the current residents of the neighbouring property, through a reduction in privacy and outlook. This change is a material reduction. The proposal previously ameliorated this impact with considered floor planning and the provision of landscape screening is solid planters;

2. the modification is sought to increase the development yield of the proposal beyond that set by the Councils principle development standards. The non-compliance with the building separation generated by the change has the potential to constrain the development approach of the neighbouring parcel; and

3. the impact arises from a non-compliance with the Councils FSR control which at [46] I concluded fails to meet the objectives of the ADG controls. The amenity impact arises directly from the increase in floor space sought.

50. I concur with Mr Meads evidence that a replacement of the louvered screens with a solid wall with highlight windows would increase the solidity of the architectural form, and is not a preferred outcome to be pursued to improve privacy between the properties and I decline to propose this as an alternative approach.

51. I concur with the evidence of Mr McDonald and I find that the proposed setbacks at the fourth level that result from the amendments will limit the acoustic and visual privacy from the adjoining properties, as well as their outlook, which is inconsistent with the aims of LEP 2015 and the requirement in cl 6.17(b) of the LEP for development to minimise adverse impacts on adjoining land. I have reached this conclusion for the following reasons:

1. Whilst the applicant has proposed a building form on the adjoining site that arguably responds to the constraints that arise from habitable space in close proximity to the boundary, relying on a particular design approach to determine any offset impacts is highly uncertain. Whilst the planning experts agree that it is a likely design approach to 64 Ewos Parade to orient living rooms of apartments to the north, east and west with the southern façade more likely to contain service areas, adjoining development should not have the effect of mandating a neighbour take a specific approach to development of their land.

2. The site is located in close proximity to the beach and an existing view corridor exists between the buildings to the east of the subject site, and 64 Ewos Parade. The southern orientation also gives access to cooling breezes which along with the desire to access a view increases the potential that windows and balconies will be seen as appropriate on the southern façade of a development at number 64, rather than the ‘defensive façade’ discussed by Mr Mead.

3. Given the findings at [28] I have considered the objectives of the setback controls in draft policy/DCP 2015 to inform the process of assessment. They are as follows:

1. Establish the street proportions.

2. Encourage articulated building forms and ensure garages do not dominate the streetscape.

3. Enhance the setting for the building by providing opportunities for landscaping and infiltration of stormwater and protecting the landscape qualities and character of the locality.

4. Promote residential amenity for residents and neighbours including access to natural light and ventilation and both visual and acoustic privacy.

5. Alleviate the visual intrusion of building bulk on neighbouring properties.

6. Minimise view loss from adjoining or nearby properties.

Consistent with the preceding I find that the proposed setbacks at the fourth level, that result from the amendments, will limit the acoustic and visual privacy from the adjoining properties, as well as their outlook. Thus the amendment can be assessed as breaching the objectives of 4, and 5 in the preceding, although I have given these controls limited weight in the assessment as the draft DCP/policy is not a matter for consideration as a Development Control Plan under s79C(1)(a)(iii).

52. In conclusion I find that it is not appropriate to accept the amendments reduced setbacks to habitable internal spaces because: it unreasonably impacts on the development of the adjoining property; fails to minimise the impacts on adjoining properties as required by LEP 2015; and may not result in their orderly and economic development. These are sufficient reason to refuse this component of the modification application.

Streetscape

53. The experts agree that:

1. Logically, from the south west, the arc of view from Ewos Parade to the enclosed balconies at level 4 would be limited to a point at which the northern elevation could be seen. With the benefit of the site view this location is approximately in line with the boundary between 69 and 71 on the opposite side of Ewos Parade.

2. That from the north-west, the arc of view to the enclosed balconies will likely be limited in the future by redevelopment of 64 Ewos Parade.

54. As part of the onsite view the parties were taken to the most prominent north western view, located in the frontage of 63 Ewos Parade, as you approach the intersection with Coast Avenue. Subsequent to the site view an extract from the architect’s 3D CAD model, that sought to represent this view, was tendered as Exhibit D.

55. Mr McDonald argues that the increased floor area sought at the fourth floor will cause the proposed development to exceed the maximum FSR applying to the site. It is his evidence that the substitution of open balconies for enclosed habitable rooms will noticeably increase the buildings bulk and scale. It his conclusion that this additional bulk will be seen from the public domain, and adjacent properties. He raises specific concern with the increase in the area of louvered wall on the northern facade arguing that it will significantly add to the sense of building bulk, especially when compared with the deeply recessed and shaded areas of the approved balconies. He is of the view that as approved the recess of the upper two floors provided a contrast in the architectural treatment of the middle of the building, and that the extension of the ‘middle’ treatment will be perceptible. He argues that the modification alters the design intent of the building, and it is his view that as a result the heavier elements of the building are no longer in balance with the lighter ‘top’ elements of the building.

56. In contrast Mr Mead’s evidence is that the enclosure of the balconies will not significantly change the overall appearance of the building and it will continue to sit appropriately in its context. In oral evidence it was his conclusion that the enclosure of the balconies would not be perceptively different for the casual observer, for the reasons that: as approved the balconies had solid dividing walls and balustrades; there are limited vantage points to view the northern façade of the building from the public domain.

57. In submissions for the Council Mr O’Gorman Hughes argues that the additional floor space, and its associated bulk, results in the proposed development being contrary to objective (b) and (c)(ii) of cl 4.4 Floor Space ratio in LEP 2015. These objectives seek to ensure that the bulk and scale of new buildings is compatible with the context of the locality and to control density and intensity of land use by taking into account the amenity of the adjoining land and the public domain. He argues that there is no certainty that 64 Ewos Parade will be redeveloped, and therefore the northern elevation may be a prominent façade for some time. The prominence of the façade is emphasised in the 3D representations included in the evidence from Mr Mead (Exhibit A) and it is Mr O’Gorman Hughes submission that they validate Council’s view that in the current context the approved development is more compatible with the context than the proposed amendment.

58. Mr O’Gorman Hughes relies on Progress and Securities v North Sydney Municipal Council [1998] 66LGRA236 and Walton v Blacktown Council [2006] NSWLEC451 at [64] to argue that the applicant has received a benefit in the granting of the consent (an increase in height) without accepting the burden of the narrowness of the building footprint that was an integral offset in Council determining to support the merits of the development application.

59. In the alternative Mr Kondilios, for the applicant, argues that the previous consideration of a variation to the height control is not a matter for consideration in the assessment of the modification application. It is his submission that nothing in the visual presentation of the amendment is offensive or abrupt when the streetscape view of the building is properly appreciated as an ambulatory experience. Mr Kondilios argues in the assessment of the modification application the test should not be whether the amendment is visible, but what the impact of the amendment is, and whether the modification meets the objectives of the controls.

60. It is Mr Kondilios’ submission that in assessing the compliance of the modification application with the objectives that the Court accepts the evidence of Mr Mead that the enclosure of the balconies is a more appropriate outcome to ensure privacy, and that modification application is a development consistent with the objectives of the relevant controls and seeks a variation to the floor space on merit.

Findings

61. Whilst Clause 4.6 of LEP 2015 does not apply to a modification application, as found in Gann v Sutherland Shire Council [2008] NSWLEC 1228 at [15] the objectives of the Floor Space control (cl 4.4) the remain relevant to the assessment of a modification application under s79C of the Act. The specific objectives of this clause seek to: ensure development is in keeping with the characteristics of the site and the local area; to ensure bulk and scale is compatible with the context of the locality; and to control density of land use taking into account the amenity of adjoining land.

62. In completing the assessment of the application I have considered clause 6.16 and specifically 6.17 of LEP 2015 which relates to residential development. Relevantly this clause states:

6.17 Urban design-residential accommodation

In deciding whether to grant development consent for development for the purposes of residential accommodation the consent authority must consider the following:

…

(b) the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, will be minimised,

(c) the extent to which the quality of the streetscape concerned will be improved by the development,

…

63. Due to the uncertainty of the technical parameters supporting the 3D visualisation showing the development and the existing buildings on Ewos Parade I have given this exhibit less weight than the 3D representations, from a similar location, included in the evidence from Mr Mead (Exhibit A).

64. With the benefit of the evidence of Mr Mead and Mr McDonald I find that the works proposed by the modification application do not satisfy the test set by cl 6.17(c) of LEP 2015 for the reason that I concur with Mr McDonald that the increase in the area of louvered wall will add to the sense of the buildings bulk, and when compared to the architectural presentation of the approved building will not improve the quality of the streetscape of Ewos Parade as required by the clause. As a result I do not accept the evidence of Mr Mead that amendments sought will not significantly change the overall appearance of the building and it will continue to sit appropriately in its context.

65. Germane to the consideration of whether the additional bulk of the building is acceptable is whether it is appropriate to exceed the density set by the controls when, as discussed at [51] I have concluded that the floor space that creates the exceedance, impacts on the amenity of adjoining land. It is clear in the framing of the aims of LEP 2015, the zone objectives and the key built form controls that the Council sought to establish a planning framework that managed development, whilst minimising adverse impacts on residents and achieving a high standard of urban design. Following consideration of the evidence I find that the proposed modification is in conflict with the objective (c)(ii) of cl 4.4 in LEP 2015.

66. Applying the common meaning of minimise from the Macquarie Dictionary: to reduce to the smallest possible amount or degree; I conclude that, for the reasons outlined in [51], the modification proposal is inconsistent with cl 6.17(b). I find that refusal of the proposal to enclose the level 4 balconies on these grounds is warranted.

67. For the reasons outlined in the preceding paragraphs, I am satisfied that the modifications sought to expand the floor plate on Level 4 of the approved building will have an unacceptable impact on the built environment (s79C(1)(b)) in the locality, such that the works should not proceed.

Conclusion

68. Given my findings in relation to the key issues in dispute between the parties the substantive amendments sought by the modification application must fail. However it was clear in the proceedings that the following modifications sought are not contested by the Council, and on the basis of the evidence of the planners can be accepted by the Court.

1. Retention of the agreed changes to the basement car parking level 1 & 2 that allow for the provision of an additional car parking space and change the unit parking allocation; and

2. Incorporation of the agreed transposing of the adaptable unit as Unit 7, as opposed to Unit 3, noting that the architectural plans before the Court indicate that these units are an exact replica in terms of floor plan layout.

69. As noted in the Practice Note Class 1 Development Appeals the Court seeks the just, quick and cheap resolution of development appeals. As a result it is appropriate to issue directions that allow the uncontested amendments to be approved by the Court, subject to the removal of the changes proposed to Level 4.

69. Having regard to the evidence, and the fact that as a result of the directions the building envelope would not alter through providing consent to the remaining components of the modification application, I am satisfied that the development would be substantially the same development as that which was approved, and that this precondition is met.

70. In response to the evidence of Mr McDonald and to give certainty to the suitability of Unit 7 as an adaptable unit, the Directions seek confirmation of compliance with the relevant requirements of the Australian Standard prior to the issue of consent.

71. Having carefully considered the joint expert report and final submissions, I am satisfied in my s79C evaluation that the remaining components of the amendment application [68] are compliant with the planning controls for the site, in particular cl6.16 and cl6.17 of LEP 2015 which are preconditions to consent, and that these components of the modification application warrant approval.

Directions

73. The applicant is to amend the proposal to:

1. Update the development application including the architectural plans, ensuring that the documentation is internally consistent, and incorporating the following:

1. Deletion of the proposed changes to level 4 of the building; and

2. Retention of the agreed changes to the basement car parking level 1 & 2 that allow for the provision of an additional car parking space and change the unit parking allocation; and

3. Incorporation of the transposing of the adaptable unit as Unit 7, as opposed to Unit 3.

2. The applicant is to file and serve the amended plans no later than March 10 2017. A hard copy and a pdf version of the architectural plans is to be provided to the Court.

3. At the same time as the submission of the material required in Order (1) the applicant is to also file a report from a suitably qualified consultant supporting the compliance of Unit 7 with the requirements of As 4299- Adaptable Housing.

4. The respondent is to file, no later than two weeks after the filing of amended plans, amended consolidated conditions of consent, including:

1. any agreed conditions outlined in the expert reports tendered in the proceedings; and

2. updating the revision numbers of the amended architectural drawings and supporting materials in condition 1

5. Liberty to restore on two days notice.

6. Orders will be made in chambers.

Addendum

74. In accordance with the directions in my judgement of 17 February, on 10 March the applicant provided me amended plans and on the 15 March 2017 the respondent provided me with the requested accessibility report and on 23 March 2017 the Council responded with conditions. I am satisfied that these documents accord with my findings and accordingly I make orders in chambers as follows:

75. The orders of the Court are:

1. The applicant is granted leave to rely on amended plans;

2.  The appeal is upheld;

3. Consent is granted to Modification Application No. MA/16/076  for alternations to DA 15/0471 at Lot A and Lot B, DP 386700, 66-68 Ewos Parade Cronulla, subject to conditions in Annexure A

4. The exhibits are returned with the exception of 1, B and the final plans received by the Court on 10 March 2017 with the revision numbers nominated in the attached conditions

…………….

D M Dickson

Commissioner of the Court

216670.16 Dickson (C) (313 KB, pdf)

216670.16 - Amended plans (8.87 MB, pdf)

Amendments

24 March 2017 - Addendum added to Judgment with Conditions and Plans

Decision last updated: 24 March 2017