Karakatsis Holdings Pty Ltd v City of Sydney Council

[2015] NSWLEC 1499

Land and Environment Court

New South Wales

Medium Neutral Citation:	Karakatsis Holdings Pty Ltd v City of Sydney Council [2015] NSWLEC 1499
Hearing dates:	13-14 October, 2015
Date of orders:	01 December 2015
Decision date:	01 December 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeals are dismissed. 2. Development Application No. D/2014/1979 for alterations and additions to an existing dwelling and conversion into a residential flat building containing 3 dwellings, at 16 Prospect Street, Erskineville and Development Application No. D/2014/1980 for alterations and additions to an existing dwelling and conversion into a residential flat building containing 3 dwellings at 18 Prospect Street, Erskineville, are refused. 3. The exhibits, other than exhibits 4 and D, are returned.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to two attached townhouses and conversion of each townhouse into a residential flat building with three apartments; internal amenity; compliance with the Building Code of Australia.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Category:	Principal judgment
Parties:	Karakatsis Holdings Pty Ltd (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel: Ms R. McCulloch solicitor (Applicant) Dr J. Smith barrister (Respondent) Solicitors: Pikes Verekers Lawyers (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	10354 and 10355 of 2015

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of two Development Applications, D/2014/1979 and D/2014/1980, for alterations and additions to two existing dwellings and conversion into residential flat buildings containing three dwellings (the proposal) at 16 and 18 Prospect Street, Erskineville (the site) by the Council of the City of Sydney (the Council). As the applications were lodged concurrently and they are for similar proposals for two adjacent properties, the two appeals were heard concurrently.

2. The appeals were subject to mandatory conciliation on 6 July 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 27 July 2015, pursuant to s 34(4) of the LEC Act. The proposals were amended following the termination of the conciliation conference and leave was granted by the Court on 5 August 2015 for the applicant to rely on the amended proposals.

Issues

3. The Council’s contentions in the matter can be summarised as:

• The proposals will result in poor internal amenity, as they fail to satisfy the guidelines in the RFDC including visual privacy, apartment layout, ceiling heights, internal circulation, storage, daylight access, natural ventilation; and fail to comply with the provisions at 4.2 of the Sydney Development Control Plan 2012 (DCP 2012) including floor to ceiling heights, solar access, internal common areas, common open space and ventilation;

• The proposal does not indicate the fire resistance levels of the proposed structure and would not otherwise comply with the Building Code of Australia (BCA);

• The proposal does not provide access for people with disabilities;

• The width of the stairs are less than 1m clear unobstructed width;

• The basement carpark has openings in the external walls to both adjoining allotments which are unprotected, resulting in a proposal that does not comply with cl C3.2 of the BCA requiring such openings to be fire protected.

The sites and their context

4. The sites are on the eastern side of Prospect Street, Erskineville with rear access from Morrissey Road. Both dwellings are attached, contemporary terrace style, three storey attached dwellings in a matching row of eight attached dwellings. The eight dwellings were constructed as a single development.

5. At the basement level, there is vehicular access from Morrissey Road through one garage door for the eight dwellings, with access to a single garage beneath each dwelling along a driveway located across the rear of each of the eight properties, with a right of way for access. Each dwelling extends over the basement and driveway.

6. The existing development is located within a heritage conservation area.

The proposal

7. The existing dwellings consist of a basement level single garage and storage with internal stair access to the ground floor. The ground floor consists of kitchen, living and dining area, with access from Prospect Street. The first floor consists of two bedrooms and a bathroom and the second floor consists of a bedroom, wardrobe and ensuite bathroom. The existing stairwell in both dwellings occupies a vertical void from the basement floor to the second floor.

8. The proposals are to convert each dwelling into three apartments, consisting of a one bedroom apartment on the ground floor and two studio apartments on the first and second floors. The proposed alterations and additions include internal alterations and additions to reconfigure each level to provide a kitchen, bathroom and living/sleeping area. The proposal includes some external alterations and additions, including replacing the front door, changes to the roof of the first floor balconies at the rear of each building and 1.4m high planters to the rear terraces.

Planning framework

9. The Environmental Planning and Assessment Regulation 2000 (the Regulation) includes the following at cl 94:

94 Consent authority may require buildings to be upgraded

(cf clause 66B of EP&A Regulation 1994)

(1) This clause applies to a development application for development involving the rebuilding, alteration, enlargement or extension of an existing building where:

(a) the proposed building work, together with any other building work completed or authorised within the previous 3 years, represents more than half the total volume of the building, as it was before any such work was commenced, measured over its roof and external walls, or

(b) the measures contained in the building are inadequate:

(i) to protect persons using the building, and to facilitate their egress from the building, in the event of fire, or

(ii) to restrict the spread of fire from the building to other buildings nearby.

(c) (Repealed)

(2) In determining a development application to which this clause applies, a consent authority is to take into consideration whether it would be appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia.

(2A), (2B) (Repealed)

(3) The matters prescribed by this clause are prescribed for the purposes of section 79C (1) (a) (iv) of the Act.

10. The proposals fall outside of the application of the State Environmental Planning Policy No SEPP 65 (SEPP 65) as each building contains less than 4 dwellings, at cl 4, as follows:

(1) This Policy applies to development for the purpose of a residential flat building, shop top housing or mixed use development with a residential accommodation component if:

(a) the development consists of any of the following:

(i) the erection of a new building,

(ii) the substantial redevelopment or the substantial refurbishment of an existing building,

(iii) the conversion of an existing building, and

(b) the building concerned is at least 3 or more storeys (not including levels below ground level (existing) or levels that are less than 1.2 metres above ground level (existing) that provide for car parking), and

(c) the building concerned contains at least 4 or more dwellings

11. Residential flat buildings are permissible with consent in the R1 zone, pursuant to Sydney Local Environment Plan 2012 (LEP 2012). The aims of LEP 2012 include to promote ecologically sustainable development and to encourage the growth and diversity of the residential population of the City of Sydney by providing for a range of appropriately located housing, including affordable housing and to ensure that the pattern of land use and density in the City of Sydney reflect the existing and future capacity of the transport network and facilitates walking, cycling and the use of public transport, at cl 1.2.

12. LEP 2012 requires that 0.2 spaces are provided for each studio dwelling on land in category B, which includes the site, at cl 7.5.

13. The Sydney Development Control Plan 2012 (DCP 2012) aims to encourage development to respond to its context and is compatible with the existing built environment and public domain, to encourage design that maintains and enhances the character and heritage significance of heritage conservation areas and to encourage ecologically sustainable development and reduce the impacts of development on the environment, at Section 1.3.

14. DCP 2012 adopts the NSW Residential Flat Design Code 2002 (RFDC) for residential flat development, at section 4.2. The parties agreed that the RFDC is purely enlivened by DCP 2012.

15. The objectives for apartment layout in the RFDC include to ensure the spatial arrangement of apartments is functional and well organised; to ensure that apartment layouts provide high standards of residential amenity; to maximise the environmental performance of apartments and to accommodate a variety of household activities and occupants’ needs. The ‘Better Design Practice’ for apartment layouts includes ensuring apartment layouts and dimensions facilitate furniture removal and placement. The recommended internal area for a one bedroom apartment is 50sqm with an external area of 8sqm and for a studio apartment, 38.5sqm with an external area of 6sqm.

16. The ‘Rules of Thumb’ for ceiling heights in the RFDC includes a recommended dimension of 2.7m for habitable rooms and 2.4m for non-habitable rooms.

17. The relevant objective for natural ventilation of the RFDC is to ensure that apartments are designed to provide all habitable rooms with direct access to fresh air and to assist in promoting thermal comfort for occupants.

Public submissions

18. Five resident objectors provided evidence at the commencement of the hearing on-site. Their objection to the proposals can be summarised as:

• The two properties form part of a row of eight matching attached townhouses and the proposal will result in two of the eight townhouses not matching the rest of the row;

• The proposal does not increase the parking from the existing 1 space per townhouse and so it will increase the number of cars in the area;

• The proposal will result in many more bins in the basement level as each studio requires its own bins. The basement is a shared space which provides access to each garage and the increased number of bins will be a nuisance;

• There will be increased noise on the existing upper bedroom level as it is proposed to be a studio apartment and this will disturb neighbours;

• The existing townhouses have three bedrooms and can accommodate three people, so the proposal is not increasing the provision of residential accommodation in the area;

• The proposals will reduce the value of the remaining townhouses;

• The documentation contains inaccuracies.

Expert evidence

19. The Council relied on the expert planning evidence of Mr Kerry Nash and the Building Code of Australia (BCA) expertise of Mr Allan Harriman. The Applicant relied on the expert planning evidence Ms Genevieve Slattery and the BCA expertise of Brendon Bennett and fire engineering expertise of Mr Carl Voss.

Consideration

Internal amenity

20. The parties agreed that the relevant sections of the RFDC operate as part of the DCP, under section 4.2 of DCP 2012.

21. The planning experts agreed that the layout of the first and second floor apartments are acceptable and comply with the RFDC provisions for apartment layout, however Mr Nash is of the view that the stairwell should be widened to comply with the BCA and if this is done, the internal width of the ground floor apartment will be inadequate.

22. The planning experts disagreed on the adequacy of the layout and ceiling dimensions of the studio apartment on the second floor and the dimensions of the stairwell. According to Mr Nash, the area of the second floor studio apartment, with a ceiling height of 2.1m or greater, is 29.7sqm and the ceiling over the sleeping area is too low, as it is a raked ceiling with a height of 1.5m up to 2.5m over a distance of 2.1m. The studio apartment has approximately 10sqm with a ceiling height of at least 2.7m.

23. The BCA experts agreed that the proposed skylights, which would provide the ability to cross ventilate the second floor studio, are too close to the boundary as the roof covering is required to be non-combustible and this requires that skylights are not within 3m of the boundary. They agreed that skylights could be provided if they met a number of requirements, including that they be of non-combustible construction and if the activation of smoke alarms within the building would cause the skylights to close. Mr Nash is of the view that the natural ventilation within the studio apartment will be compromised if the ventilated skylight does not form part of the proposal.

24. Ms Slattery agreed that the second floor studio apartment does not meet the objectives of the RFDC for apartment layout and that the ceiling height in the sleeping area of the studio apartment is not ideal.

25. I accept Mr Nash’s evidence that the amenity of the second floor studio apartment is significantly compromised, because the applicant is seeking to turn an existing bedroom, bathroom and wardrobe, in a room with a partially raked ceiling under the roof, into a dwelling. The area proposed for the bed is 2.1m wide, which includes the circulation space in front of the wardrobe, with a ceiling height at the wardrobe of 1.5m. The size and layout of the studio apartment on the second floor is inappropriate, because it is small, poorly organised, uncomfortable and impractical. Having regard to the relevant planning controls and all of the evidence provided, I find that the proposal for the second floor studio apartment has such a poor standard of residential amenity that the application should be refused.

26. The proposal encloses the existing vertical void containing the stair and the stairwell has a total width of 1980mm on the first floor, which will result in an unobstructed clearance up a flight of stairs, between the handrails, of less than 1m. Clause D1.5 of the BCA requires an unobstructed width of 1m for all stairways. The BCA experts agreed that egress in the event of fire would be acceptable due to the low occupant load, subject to the minimum unobstructed width being 750mm. I accept the agreement of the BCA experts that the width of the stair is acceptable, if not ideal, and I accept the Council’s submission that the narrow stair will pose potential difficulties for access for emergency services and removalists. While I consider that the non-compliance of the unobstructed stair width is not determinative, it is, in my view, another compromised and concerning aspect of the proposal.

Compliance with the BCA and fire resistance levels of the proposed structure

27. The BCA experts agreed that the BCA requires the proposals to be a Type A construction (the more fire resistant level of construction) and constructed in accordance with Specification C1.1 of the BCA. They agreed that no information has been provided with respect to the proposed construction of the development and the fire resistance level (FRL) of the new internal walls enclosing the stairway. The BCA experts agreed that under the provisions of AS 3600 ‘Concrete Structures’, the existing concrete slabs are likely to have a FRL of as little as 30/30/30, when the proposals, as Class 2 structures, require a FLR of 120/120/120 for the ground floor slabs and 90/90/90 for the first and second floor slabs, under Table 3 of Specification C1.1 of the BCA. The structural engineer who prepared the structural design for the existing row of attached dwellings provided a letter and the structural drawing set (exhibit A) which states that the FRL of the floor between the carpark and the ground floor is 120/120/120 and the FRL of the upper floors is 90/90/90. Mr Voss’ evidence is that there are products that can be applied to an existing slab to extend its FRL, however no specific details of how the buildings are to be modified to achieve the required FRL are provided.

28. In Mr Bennett’s opinion, evidence of the FRL of the structure can be dealt with at the Construction Certificate stage of the development. I do not accept that consideration of whether the existing buildings are able to be modified to achieve the required FRL can be appropriately left until after development consent is granted. Achieving the higher standard of fire resistance required in order to convert the existing single dwellings into residential flat buildings is essential to this proposal and leaving this aspect of the development to be dealt with at the Construction Certificate stage may have the effect of altering the proposed development in a fundamental respect (Mison v Randwick Council (1991) 191 NSWLR 734).

29. The agreed evidence of the BCA experts enlivens sub-cl 94(1)(b) of the Regulation, because, on the basis of the evidence before me, I am not satisfied that there is sufficient certainty that the measures contained in the existing buildings will be sufficient to protect persons using the residential flat buildings and to facilitate their egress in the event of a fire.

30. The proposal does not provide access for people with disabilities to the common areas. Clause D3.2 of the BCA requires an accessway to be provided from the main entry point to the allotment boundary, whereas there are a set of stairs to the raised level of the ground floor in the existing buildings. The experts disagreed on whether the proposal required to comply with cl D3.3 of the BCA, on the basis of whether the proposal is caught by cl 94(1)(a) of the Regulation, which enlivens the discretion of the consent authority to require the buildings to be upgraded to meet BCA requirements if the proposal represents more than half of the total volume of the existing building. Given my finding that sub-cl 94(1)(b) of the regulation is enlivened, there is no need to determine this contention.

31. While I accept that the Court has the discretion, pursuant to cl 94(2) of the Regulation, to require the existing buildings to be brought into total or partial conformity with the BCA; it is not necessary to exercise the Court’s discretion under cl 94(2) given my findings that the poor standard of residential amenity in the second floor studio is determinative.

Conclusion

32. The existing buildings were designed, approved and constructed as single, attached dwellings. The proposals result in two compromised residential flat buildings. The second floor studio apartment in each proposal has such a poor standard of residential amenity that the application should be refused. The intensification of the use and provision of undersized apartments and circulation areas has a cumulative impact that represents an overdevelopment of the sites and an unacceptable impact on the amenity of future and neighbouring residents.

Orders

33. The orders of the Court are:

1. The appeals are dismissed.

2. Development Application No. D/2014/1979 for alterations and additions to an existing dwelling and conversion into a residential flat building containing 3 dwellings, at 16 Prospect Street, Erskineville and Development Application No. D/2014/1980 for alterations and additions to an existing dwelling and conversion into a residential flat building containing 3 dwellings at 18 Prospect Street, Erskineville, are refused.

3. The exhibits, other than exhibits 4 and D, are returned.

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Susan O’Neill

Commissioner of the Court

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Decision last updated: 01 December 2015