Karavelas v Hurstville City Council
[2014] NSWLEC 1246
•02 December 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Karavelas v Hurstville City Council [2014] NSWLEC 1246 Hearing dates: 20-21 November 2014 Decision date: 02 December 2014 Jurisdiction: Class 1 Before: Morris C Decision: Directions for amended plans and conditions
Catchwords: Development application: residential flat building, contentions addressed through amended plans Legislation Cited: Environmental Planning and Assessment Act 1979;
Hurstville Local Environmental Plan 2012; State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development;Texts Cited: Residential Flat Design Code Category: Principal judgment Parties: William Karavelas (Applicant)
Hurstville City Council (Respondent)Representation: Mr R White (Applicant)
Ms V McGrath
Ms A Cowper
Gadens Lawyers (Applicant)
Norton Rose Fulbright
File Number(s): 10644 of 2014 10645 of 2014
Judgment
Mr Karavelas lodged separate development applications proposing the construction of residential flat buildings on two adjoining sites in Peake Parade, Peakhurst. As Hurstville City Council had not determined the applications within the prescribed period, Mr Karavelas is appealing the deemed refusal of those applications.
Development Application 2014/0932 sought consent to demolish existing buildings and construct a three storey residential flat building comprising four x 1 bedroom units, six x 2 bedroom units and two x 3 bedroom units with basement car parking for seventeen cars and rooftop common open space at Nos. 2-4 Peake Parade (Matter No. 10644 of 2014).
Development Application 2104/0151 proposed a similar development at Nos. 6-8 Peake Parade (Matter No 10645 of 2014).
At a Case Management held on 10 November 2014, the parties agreed that the matters be heard together. At the hearing, it was agreed that evidence in one would be taken as evidence in the other matter.
The sites and their context
Nos 2-8 Peake Parade are four adjoining allotments on the northern side of the roadway. All lots fall from the street to the rear boundary with a level difference in the vicinity of 5m. A public reserve adjoins the rear property boundary.
The site Nos 2-4 is irregular in shape and has a frontage of 36.576m, rear boundary of 23.641m and site area of 1100sqm. Its eastern boundary is shared with two adjoining dwelling allotments fronting Hugh Avenue.
Nos 6-8 are also irregularly shaped allotments and have a combined frontage of 34.44m, rear boundary of 30.48m and site area of 1187.6sqm.
Development surrounding the site comprises single storey detached dwelling houses and two storey dual occupancy development. Peakhurst neighbourhood centre is located to the south of the site at the southern end of Hugh Avenue. Development in the vicinity of the site is currently undergoing redevelopment due to the rezoning of the land to permit development of three storey residential flat buildings.
The sites are at the lowpoint in Peake Parade with stormwater ponding in the roadway adjacent to the site in storm events. An overland flow path affects the site and drains to a channel within the adjacent public reserve.
Background and the proposals
DA 2014/0932 was lodged with the council on 6 June 2014, notified to affected persons from 20 June to 4 July and considered by the St George Design Review Panel at its 17 July meeting. The council received seven submissions in relation to the application, all of which objected to the proposal. The matters raised were overdevelopment of the site; loss of trees and vegetation; inadequate stormwater drainage to deal with an existing overland flowpath; inadequate pedestrian and vehicular access; inadequate parking and access; traffic generation and non-compliance with planning controls.
The Design Review Panel (DRP) generally supported the proposal however recommended a number of design changes and resolution of the drainage issues. The changes included a better interface with the adjoining public reserve, improved landscaping, relocation of garbage storeroom, improvement to the access to and the utility of the common open space area and changes to main lobby entrance.
Development Application 2014/0151 was lodged on 20 March 2014, notified between 28 March and 11 April and was also considered at the DRP meeting on 17 July 2014. The council received seven submissions in relation to that application with the issues similar to those for Nos. 2-4 with the additional concern regarding loss of privacy and solar access. The DRP supported the application subject to resolution of design issues associated with the interface with the park, improved landscaping, entry lobby changes and reconfiguration of units on the south western corner of the proposed building to address amenity impacts.
On 19 August 2014, Mr Karavelas lodged appeals against the deemed refusal of the applications.
Amendments to the application
The council did not grant its staff delegation to enter into conciliation as required under s34 of the Land and Environment Court Act 1979 and accordingly, the matter proceeded directly to hearing. During the joint conferencing, the parties discussed those matters that the council had identified as being either deficient in terms of information to allow proper assessment of the application or unsatisfactory in terms of compliance with the relevant planning controls. The range of matters identified was greater than those raised by the DRP.
Following that joint conferencing, the applicant prepared amended plans that sought to address the contentions in the case however, those plans had not been prepared in time to allow the council's experts to adequately assess them, despite directions given by the Court at the Case Management. Following the site view on the first day of the hearing, the matter was adjourned to allow the experts time to review those plans and to prepare an addendum to their Joint Reports. Those reports are Exhibits E and F.
The applicant was granted leave to rely on the amended plans at the commencement of the hearing subject to payment of the those costs of the council that are thrown away as a result of amending the development application, pursuant to s97B of the Environmental Planning and Assessment Act 1979 (EP&AAct) as agreed or assessed.
Further amended plans relating to Nos 6-8 were tendered during the hearing as Exhibit K. Those plans attempt to further resolve contentions in the case.
The planning controls
The site is zoned R3 Medium Density Residential under the provisions of Hurstville Local Environmental Plan 2012 (LEP) and residential flat buildings are permitted with consent in that zone. The objectives of the zone are:
- To provide for the housing needs of the community within a medium density residential environment.
- To provide a variety of housing types within a medium density residential environment.
- To enable other land uses that provide facilities or services to meet the day to day needs of residents.
- To ensure that a high level of residential amenity is achieved and maintained.
- To provide for a range of home business activities, where such activities are not likely to adversely affect the surrounding residential amenity.
Clauses 4.3 and 4.4 of the LEP contain development standards relevant to the assessment of the application, those being height (12m maximum permitted) and floor space ratio (FSR) (1:1 maximum permitted). The lift overrun and stair enclosure and lobby that provides access to the proposed rooftop common open space area breaches the 12m height development standard. There is a dispute between the parties whether it is necessary to lodge an objection to that development standard pursuant to the provisions of clause 4.6 of the LEP or whether the structure is an Architectural Roof Feature as referred to in clause 5.6. Clause 4.6 provides for variations to development standards.
Clause 5.6 is in the following terms.
(1) The objectives of this clause are as follows:
(a) to create variety in the Hurstville skyline and urban environment,
(b) to encourage quality roof designs that contribute to the aesthetic and environmental design and performance of the building,
(c) to encourage integration of the design of the roof into the overall facade, building composition and desired contextual response,
(d) to promote architectural design excellence.
(2) Development that includes an architectural roof feature that exceeds, or causes a building to exceed, the height limits set by clause 4.3 may be carried out, but only with development consent.
(3) Development consent must not be granted to any such development unless the consent authority is satisfied that:
(a) the architectural roof feature:
(i) comprises a decorative element on the uppermost portion of a building, and
(ii) is not an advertising structure, and
(iii) does not include floor space area and is not reasonably capable of modification to include floor space area, and
(iv) will cause minimal overshadowing, and
(b) any building identification signage or equipment for servicing the building (such as plant, lift motor rooms, fire stairs and the like) contained in or supported by the roof feature is fully integrated into the design of the roof feature.
The DCP contains further controls and those relevant to the application are streetscape, building height, building setbacks, roof design, excavation, driveways, landscaping, stormwater, privacy and private open space.
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP65) and the associated Residential Flat Design Code (RFDC) applies to the applications and of particular relevance to the application is Part 03 - Building Design.
The issues
The contentions in the case are contained in the Statement of Facts and Contentions filed in the proceedings, Exhibits 1 and 2. As a result of the Joint Conference process and the amendments made to the plans, the council did not press all of those contentions. Those issues that remain are urban design, building separation, inconsistency with the LEP and DCP, site planning, streetscape, building setbacks, side boundary setbacks, roof, drainage, site entry and the public interest. The remaining issues could be addressed through further amendments to the plans.
The main issue in the case that informs the council's position in relation to these matters is the proposal for a shared 7.2m wide driveway between the two sites to provide access to the basement carparking areas. That ramp is at a 25% gradient and it is also to cater for the overland flowpath that affects the sites. It has a length of approximately 28m. The exhibit K plans provide for the planting of three trees along the common boundary of the site in the middle of the driveway. The applicant proposes that reciprocal rights of way are created over the driveway to facilitate two way vehicle movement. It is the council's view that the width and visual impact of that driveway is unacceptable resulting in poor visual amenity and building separation and that the driveways should be separated with access to Nos 2-4 provided at the eastern side of that site.
The evidence
Expert engineering evidence was provided by Mr Z Khorram for the applicant and Mr M Ward for the council. Town planning evidence was heard from Mr A Darroch for the applicant and Mr A Betros for the council with Ms G Morrish providing urban design evidence.
Engineering
The engineers agreed that the best practical way of managing the stormwater overland flow is through the proposed joined driveway of 2-4 and 6-8 Peake Parade. Separation of the driveways will result in reduction of available width of flow therefore higher depths of flow would be expected which in turn increase the velocity/depth ratio above the safe limit.
They agree that the overland flow entering the development sites is to be reduced to an absolute minimum by the construction of this proposed drainage system. That system utilises pits and pipes in addition to the open flowpath contained within the driveway. They consider the titles of the development sites need to be consolidated prior to any development relying on the current design taking place, with the adjoining driveways providing a satisfactory default overland flow path in the event of total blockage of the underground system.
The engineers were asked to consider the separation of the driveways as recommended by the council's planning and urban design experts. They agreed that the separation of driveways with the current design would result in an unacceptable default (i.e. blocked drainage system) overland flow situation on the driveway to 6-8 with regard to hazard level on the driveway, and potential scouring of open space at the rear of the development. An amended flood study would be required to assess these matters however they indicate that there is no reason to assume that independent and uncoordinated designs could not be prepared for 2-4 and 6-8 Peake Parade subject to appropriate management of stormwater and hence no negative impact on the overland flow path for each site. No modelling of this scenario had been undertaken by either party.
Mr Khorram modelled the catchment and says that the existing piped council drainage system caters for a 1 in 5 year event. In major storm events that capacity is quickly exceeded and results in the overland flow that affects the sites. His drainage design is to manage the overland flow through a safe corridor and guide the water through its natural path within the proposed double driveway. He says that the width is required to reduce the actual depth and because there is ponding in the gutter adjacent to the site up to 250mm in depth, he has reservations as to whether the entire flow can be captured in kerb inlet pits which have limited capacity and are prone to blockage. For practical reasons, the overland flow path should be sufficient to cater for a 1 in 100 year event and assume 100% blockage within the pipes. He says that it is preferable to have the overland flow path in one place and this is the most practical and safest way to address the drainage issue.
Mr Ward says that a system of pits and pipes that are overdesigned to cater for blockage and a 900mm grated drain at the top of the driveway could provide a very significant capture system. He advised that the council has not undertaken an overall flood study of the area rezoned for higher density housing and as sites are being redeveloped the council relies on individual flood studies to identify particular issues that are then dealt with on an individual situation.
Planning and urban design
The experts met on the first day of the hearing to discuss further amended plans and prepared supplementary joint reports, Exhibits E and F. Ms Morrish and Mr Betros acknowledged the advice of the drainage engineers that the driveways could be separated and consider that to do so would provide a significantly better urban design and streetscape outcome. They consider the latest version of plans is an improvement from that originally proposed however, it still contains the 7.2m wide combined driveway which is not characteristic of the area and would not be consistent with the desired future character sought by the council's planning controls.
Ms Morrish and Mr Betros says that the site is highly visible from the public reserve due to the topography of the area so the built form will be highly prominent, for that reason they consider it essential that any residential flat development should be suitable softened by landscaping. The combined driveway does not allow for this opportunity as both the rear and internal side elevations will be highly visible. They consider the restriction of deep soil to the rear and sides of the site is an inferior response as opposed to the opportunities associated with divided driveways. They also say that individual driveway entries would allow for greater landscaping opportunities between the two built forms, would be a better planning outcome and would provide the occupants with a better level of amenity as they would be looking towards landscaping rather than having skewed views towards the adjacent built form across the double width driveway.
Mr Darroch notes that the existing sites currently accommodate two adjoining driveways in the same location which perform the same role in relation to overland flow. The proposal also deletes two other driveways and consolidates 4 driveways into one. He says that it is possible to plant a row of trees down the centre of the driveway and provide intensive landscaping at the end of the driveway that would provide the softening between buildings and reduce the visual impact of the driveway when observed from the reserve. He provided a photograph of suggested plantings, Exhibit J and agreed that the trees should be fully contained on one allotment to ensure that the maintenance responsibilities are clear.
Notwithstanding their views on the driveway, the experts sought to resolve the design and amenity concerns by modifying the subject proposal. Their views in relation to the relocation of the garbage room, reduction in length of driveway, building depth, solar access, ceiling heights, overshadowing, floor heights, access, visual quality and bike parking have been resolved through the amended plans. They have identified further matters that require resolution in the event that the Court upholds the appeals and these are detailed in Exhibits E and F. They include ensuring the driveway is of a high quality design, provision of additional privacy treatments to the corner dining room window for units 1 and 6 to alter this to a highlight window to avoid internal privacy impacts between the bedroom 3 of units 2 and 7, provision of upward horizontal louvres along the side of the front balconies so as to avoid overlooking impacts to the adjoining western neighbour, provision of additional planters.
The amended plans provide for an increase in the floor levels of the building to provide for a better interface with the rear common open space and more acceptable amenity to the lower level southern units. The consequence of this change is that the height of the stairwell and lift structure that provide access to the rooftop private open space area now exceed the development standard for height.
Ms Morrish and Mr Betros consider that the breach of the height limit is unacceptable due to the visibility of the non-compliant component from the park and the lift overrun and stairwell would be prominent in the streetscape. They do not consider that it constitutes an architectural roof feature as they do not consider the design to be a decorative roof feature.
Ms Morrish says the development provides adequate private open space at ground level that gives a good level of amenity and therefore the rooftop open space area could be deleted. This would remove the requirement for the stair access and allow for a reduced lift overrun that could fit within the height plane. Whilst the area does not satisfy the numerical controls contained in the RFCD Mr Betros says the proximity of the development to the park justifies the reduction in open space on the sites.
Mr Darroch agrees that if the building height is a design issue that it would be possible for the structure to be better designed, similarly, it could be reduced in footprint. If the structure is not found to be an architectural roof feature, he has provided the Court with objections to the development standard for height (Exhibits M and N). He says that the topography of the sites is such that it is appropriate to vary the development standard to ensure floor levels deal with amenity concerns. He says that there are no identified amenity impacts associated with the structure, the only concern is visual and this can be addressed through redesign. The higher level of private open space is consistent with the RFDC and should be retained.
Ms Morrish and Mr Betros agreed that the provision of a pitched roof is not essential nor determinative and should be provided even if the rooftop communal open space is deleted. This would reduce the overall bulk and scale, if compared to a pitched roof and be compatible with the established dual occupancy to the west at 10 Peake Parade.
Conclusion and findings
At the conclusion of the evidence, the difference between the parties was whether it is preferable for the development to be redesigned to provide for two separate driveways. Subject to further minor changes to the plans, Ms Morrish says that the proposal would be the best solution if the driveway doesn't move. Mr Darroch says that it is not necessary to redesign the development so there are two driveways, that the proposal now before the Court is acceptable, separation distances are satisfactory, there are no noise impacts and with tree planting down the driveway and within the rear yard, the objectives of the council's planning controls and the issues raised by its experts can be achieved.
Having regard to the engineering evidence, it is common ground that the combined driveway is the safest and best practical way of addressing the overland flow path. Whilst there is agreement that another solution may be possible, I have no evidence that this can be achieved and if it does, would result in the satisfactory resolution of the drainage issues or lead to other consequential impacts.
The plans before the Court are those that I must determine in accordance with the provisions of S79C of the EP&AAct, not some other hypothetical plans. That section requires me to consider in summary, the planning controls, the impacts of the development, the suitability of the site for the development, matters raised in submissions and the public interest.
The positive process that has been adopted in this appeal by the council experts in attempting to positively address the contentions through suggested design changes that have been embraced by the applicant has, in my view led to a superior built form. Whilst I accept that there may be better planning outcomes, having regard to the location of the overland flow path and the need to provide a safe and risk free solution to this issue, I consider that the design philosophy now before the Court is acceptable and consistent with the planning controls. The design issues raised in submissions are also addressed.
Due to the changes made during the hearing, a final set of plans has not been produced and I indicated to the parties that I would deliver my findings rather that require further plans to be prepared that may, depending on my decision, be either superfluous or require further amendment.
In relation to the height of the building, it is common ground that the lift overrun and stairwell exceeds the 12m development standard for building height. Clause 4.6 of the LEP provides for variation of that standard or, alternately, clause 5.6 provides for an architectural roof feature to exceed that standard. For consent to be granted to the application, I must be either satisfied that the objection to the development standard is well founded and compliance is unreasonable or unnecessary in the circumstances of the case (clause 4.6) or that the portion of the building that exceeds the height is an architectural roof feature and the provisions of clause 5.2 of the LEP are met.
An architectural roof feature is not defined in the LEP. The council's evidence is that the parts of the building that exceed the height control are not such a feature because the structure does not comprise a decorative element. Again, decorative element is not described. As all of the experts agree that the design of the structure could be improved so as to comprise a 'decorative element', to do so would cure the concern and negate the need for consideration of the clause 4.6 objection.
For completeness however, I consider that it is appropriate to consider the objections lodged. At its highest, the building is 13.6m or 1.6m in excess of the standard.
Having regard to the objections, I agree that it is desirable to include the rooftop open space in addition to the open space provided to the rear of each site at ground level. The structure is centrally located within the building footprint and will have no adverse impacts on adjoining properties in terms of overshadowing or view loss. Whilst it will be visible from certain properties, it is not uncharacteristic from the form of development anticipated in the locality and therefore consistent with the objectives of the development standard and those of the R3 zone. There are no matters of State or Regional significance raised in the contentions that are relevant to the consideration and as the objectives of the control are met, there are no public benefit issues that warrant refusal of consent. The benefits of the rooftop private open space outweigh the minor variation to the development standard. Accordingly, it is appropriate to allow variation to that development standard.
There is also benefit in enhancing the design of the structure so that it would contain a decorative element and, in view of the experts agreed position that this should and could occur, the plans should be amended to deal with this requirement.
Further changes are also required. This includes the need to enhance the site landscaping at the northern end of the driveway to include appropriate tree species that would grow to a mature height of at least 10m and provide screening of that driveway when viewed from the adjoining public reserve. The rear area should positively integrate with the reserve. In addition, trees should be planted along the driveway as suggested by Mr Darroch however, these should be clearly identified as being within one of the sites and not planted on the boundary to ensure they are maintained. Those changes detailed in the supplementary joint report, Exhibits E and F should also be made.
There was disagreement between the parties as to conditions of consent that relate to how the driveway would be constructed in the event that one development proceeded and the other did not. It is the council's preferred position that the two sites be consolidated into one allotment. Mr White, for the applicant, tendered a draft condition that he submits ensure that the concerns of the council are met. I am satisfied that the form of that condition is generally satisfactory, provided it is clear that the first construction certificate is the certificate that details the driveway construction and specification and no work proceeds until such time as the driveway is in place. Together with a condition that requires the grant of reciprocal rights of way over the full width of the driveway, the development could proceed without the need to consolidate the four allotments. similarly those rights of way should be created prior to the construction certificate for stage 2 works is issued.
Subject to the provision of fully detailed architectural plans that address the matters outlined above including landscaping, an amended BASIX Certificate, and an amended Design Verification Statement there is no reason why consent cannot be granted. Once those plans have been prepared, the council will need to finalise consent conditions to reflect these findings. Final orders will be made in chambers once the agreed plans and conditions are filed.
The applicant is directed to file and serve amended plans and documentation as detailed at [51] by Friday 12 December 2014 and the council is to prepare conditions of consent consistent with this decision and file those by Friday 19 December 2014.
__________________
Sue Morris
Commissioner of the Court
**********
Decision last updated: 02 December 2014
Karavelas v Hurstville City Council [2014] NSWLEC 1246
0
0
2