Khoury v Council of the City of Sydney
[2011] NSWLEC 1021
•11 February 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Khoury v Council of the City of Sydney [2011] NSWLEC 1021 Hearing dates: 16 December 2010 Decision date: 11 February 2011 Before: Pearson C Decision: 1. Appeal dismissed.
2. Development Application D/2009/2021 for construction of a mixed use four storey building comprising a commercial office suite, residential apartments, ancillary car parking and strata subdivision, at 56-58 Wyndham Street Alexandria, is refused.
3. The exhibits are returned except for exhibits A, F and 2.
Catchwords: DEVELOPMENT APPLICATION - mixed use development Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy 65 - Design Quality of Residential Flat Development
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan 1997 - Urban DesignCases Cited: Zhang v Canterbury City Council (2001) 115 LGERA 373
BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399Category: Principal judgment Parties: Michael Khoury (Applicant)
Council of the City of Sydney (Respondent)Representation: Mr B Goldsmith (Agent) (Applicant)
Mr A Hawkes (Solicitor) (Respondent)
File Number(s): 10783 of 2010
Judgment
Commissioner : This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of development application D/2009/2021 seeking consent to the construction of a mixed use four storey building including roof top terrace comprising a commercial office suite, five residential apartments, ancillary car parking and strata subdivision, at 56-58 Wyndham Street Alexandria (the site).
The development application was amended during the course of an application for review under s82A of the Act. The application before the Court proposes a building with a ground floor commercial suite and four residential apartments above, with a total gross floor area of 393sqm and floor space ratio of 1.84:1, and a total height to a maximum of 13.7m. On 18 October 2010, after the Class 1 appeal was lodged, the Council resolved to uphold the refusal of development consent.
The issues between the parties relate to consistency with the zoning objectives; compliance with the applicable height and floor space controls; amenity requirements relating to building separation, solar access and cross flow ventilation; and noise.
The site and locality
The site comprises two allotments with a combined area of 213.6 sq m and a frontage of 7.635 m on the western side of Wyndham Street, 15m south from the corner of Henderson Road. The site is currently vacant. Vehicle access to the site is by a private right of way from Henderson Road owned by Strata Plan 71198 and a three storey residential apartment building fronting Botany Road. The proposed development includes parking for two vehicles in tandem formation at the rear of the building. Adjoining the site to the north on the corner of Henderson Road is the Raglan Hotel. Adjoining the site to the south is a two to three storey commercial building.
The land adjoining the site and the Raglan Hotel at the rear of the site, with frontage to Henderson Road (No 10 Henderson Road), is vacant, and is the subject of a development application (D/2010/998) made under State Environmental Planning Policy (Affordable Rental Housing) 2009 for the construction of a new three storey boarding house with a total of 10 rooms, which is currently being assessed by the Council.
Planning controls
The site is zoned Zone 10-Mixed Uses under the South Sydney Local Environmental Plan 1998 (the LEP). Development permissible with consent is:
bed and breakfast accommodation; commercial premises; dwelling houses; high technology industries; industries; light industry; local businesses; local shops; roads; shops; temporary buildings; warehouses or distribution centres
The objectives of the zone are provided in cl21(1) of the LEP:
(1) What are the objectives of the zone?
The objectives of Zone No 10 are:
(a) to allow, in appropriate circumstances, a mixture of compatible land uses such a residential, retail, commercial, light-industrial and industrial development, and
(b) to promote mixed use planning by locating mutually supportive and compatible uses such as residential uses, places of employment and retail uses in close proximity to each other so as to minimise vehicular travel, and
(c) to permit appropriate forms of residential development within the zone to mutually support the vitality of nearby commercial and urban village centres, and in doing so, assist successful urban consolidation, and
(d) to incorporate contemporary urban design principles in the design of new buildings and the interpretation of their relationship with the public domain, and
(e) to implement the principles of energy efficiency, travel demand management and other sustainable development practices as part of the development assessment process, and
(f) to encourage the integration of suitable employment and resident intensive activities into accessible locations so as to maximise public transport patronage and encourage travel by foot and bicycle from surrounding areas, and
(g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and
(h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area.
Clause 10 of the LEP provides:
Except as otherwise provided by this plan, the Council must not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located.
State Environmental Planning Policy 65 - Design Quality of Residential Flat Development (SEPP 65) applies. The relevant design principle (which is required by cl30(2)(b) to be taken into account) is Principle 7:
Principle 7: Amenity
Good design provides amenity through the physical, spatial and environmental quality of a development.
Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility
The relevant parts of the Residential Flat Design Code (the RFDC) are those in Part 1: Local Context - Building Separation; Part 3: Building Design - Natural Ventilation and Daylight Access.
The South Sydney Development Control Plan 1997 - Urban Design (the DCP) applies. The relevant parts are Part E: Environmental Design Criteria 2.3 Height and scale, and 5.1 Energy efficient site layout and building design; and Part F: Residential Flat Buildings 2.1 Private and communal open space, and 2.1 Amenity.
It was common ground that the provisions of the draft Sydney Local Environmental Plan 2011 are not relevant to assessment of this application. The draft proposes retention of the mixed use zoning, with an increase in the height limit and increase in maximum FSR.
evidence
The matter commenced on site with a view, including a view of the surrounding locality. Expert planning evidence was provided by Ms V Aziz on behalf of the Council and Mr J Lovell on behalf of the applicant. Ms Aziz and Mr Lovell provided a joint report, and gave oral evidence. Expert evidence on acoustic issues was provided by Mr E Keranovic on behalf of the Council and Mr R Haydon on behalf of the applicant. Mr Keranovic and Mr Haydon provided a joint report and were present at the view. They were not required to give oral evidence.
consideration
Noise
The acoustic issues associated with the development are raised in two contentions by the Council. The first is that the site is located directly adjacent to two significant noise generating uses being an arterial road (Wyndham Street) and the Raglan Hotel. The Raglan Hotel is not presently operating, however its permissible trading hours are until 12 midnight Monday to Saturday. The Council contends that compliance with its acoustic requirements would require the external windows and doors to remain closed, which would not comply with the requirement in the RFDC that 60 percent of apartments benefit from cross flow ventilation and that all apartments be provided with a minimum 2m balcony for the enjoyment of outdoor living. The Council further contends that there are concerns about impact of traffic noise from Wyndham Street which is a major arterial road, and structural borne noise transmission between the Raglan Hotel and the proposed development.
In his Statement of Evidence Mr Haydon expressed the opinion that during hours outside the hours of maximum road traffic noise levels, with the exception of one window of the development, all windows to habitable rooms could be opened at various times of likely use and achieve compliance with the relevant acoustic criteria and standards. Mr Haydon stated that in order for the maximum internal reverberant noise levels to be complied with, windows would need to be closed in bedroom 1 and the living room of units 1, 3 and 4; and the two bedrooms in unit 2. The study in units 1 and 3; the living room and bedroom 1 in unit 2; and bedroom 2 in unit 4, would comply with the maximum internal reverberant noise levels with the window open. Mr Haydon was of the opinion that each unit would have at least two windows that could remain open at all times for ventilation, being windows in the study and laundry in units 1 and 3, the living room and bedroom 1 in unit 2, and the kitchen, bathroom and bedroom 2 in unit 4.
Mr Keranovic and Mr Haydon agreed that the recommendations made in the acoustic report prepared by Acoustic Dynamics dated 10 March 2010 would achieve compliance with the minimum criteria and requirements. Those recommendations included provisions for construction of the external walls, ceiling and roof system, and windows and glass doors. The experts agreed that acoustic compliance testing for noise intrusion to the development should be conducted when the hotel is operating. While the experts agreed that the acoustic aspects would not be grounds for refusal and could be the subject of a condition, they disagreed as to the wording of such a condition. Mr Keranovic was of the opinion that the specific recommendations should form part of the conditions, as failure to do so may not ensure construction that would protect from structural/ air borne noise transmission between the residential units in the development, particularly when the neighbouring licensed premises were operating. Mr Haydon considered that conditioning specific construction is not necessary, and that the condition should reflect the acoustic criteria so that compliance could be demonstrated with a compliance assessment report submitted prior to the issue of a construction certificate.
Based on the agreement of the experts, I accept that the minimum acoustic requirements for structural and airborne noise transmission can be addressed by compliance with the recommendations of the Acoustic Dynamics report of 10 March 2010, and can be made the subject of a condition. Given the findings on other issues below, it is not necessary to reach a conclusion on the wording of such a condition. Mr Haydon's evidence as to which windows could remain open while achieving compliance with internal noise reverberant level requirements was not contradicted, and I accept it. That evidence establishes that it will be possible to have some windows open for ventilation, and the relevance of that in assessment of the amenity for future residents of the residential apartments in the context of the provisions of the RFDC and the DCP is discussed below.
Zone objectives
The Council contends that the proposed development does not satisfy the zone objectives in cl21(1)(a), (b) and (h) of the LEP. It contends that the potential noise and other impacts from the adjoining Raglan Hotel on the proposed residential uses result in an unacceptable tension and mean that the uses are not mutually supportive or compatible. In their joint report the expert planners agreed that provided the noise impacts of the adjoining hotel can be satisfactorily resolved, the proposed development is not inconsistent with the zone objectives. The acoustic experts agreed that compliance with the recommendations in the acoustic report prepared by Acoustic Dynamics dated 10 March 2010 for construction methodology would achieve compliance with minimum acoustic criteria, and that there should be an acoustic report provided on completion of construction, when the neighbouring hotel is operating, verifying that habitable rooms in the closest residential unit are not affected by offensive noise. The expert planners were in agreement that the potential noise impacts of operation of the hotel would not be such as to make the proposed development inconsistent with the objectives in cl21(1)(a), (b) and (h) of the LEP. Given my conclusions on other contentions discussed below, it is not necessary to reach a conclusion as to whether the proposed development is consistent with the zone objectives.
Height and floor space ratio
The total height of the proposed development is 13.7m including the roof top terrace. Under the DCP the height control limit for the site is 9m. This height limit applies to the development along the eastern side of Wyndham Street to the intersection with Buckland Street, and also to the area to the north west of the site on the northern side of Wyndham Street. The height limit applicable to the western side of Wyndham Street is 6m.
The objective of the height controls is:
To ensure buildings:
· Are appropriate in scale, compatible and complementary with areas of townscape significance, the site and its context.
· Do not dominate and overshadow the Public Domain.
· Achieve high environmental amenity.
Part 2.3 of the DCP states in relation to the height controls:
Where the height specified in the Height Control Map is varied in exceptional circumstances for 'infill' linear development, building height does not exceed the 'building envelope control line' determined by the width of the street specified by the formula for street height. (Refer to Figure E-1)
...
In special circumstances Council may support a part storey above the prescribed height limit provided the part storey is wholly within the 36 degree Attic height plane as defined.(Refer to Figure E-3)
Mr Lovell's evidence was that Wyndham Street is approximately 20m wide and so applying the formula at part 2.3 of the DCP the maximum building height would be 21.6m. The proposed upper level is accommodated within a plane formed by projecting a line at 36 degrees from the ceiling level of the floor below from the front and rear boundaries, which is consistent with the attic control in figure E-3. In Mr Lovell's opinion, the proposed development has been designed to fit comfortably within a building envelope formed by the 9m height control and the 36 degree "attic" height plane, projected from the front and rear boundaries. In addition the front wall facing Wyndham Street has been designed to effectively match the level of the upper most cornice of the hotel, and the height of the front wall facing Wyndham Street is consistent with the predominant building height along the eastern side of the road carriageway. In his opinion, the exceptional circumstances justifying departure from the height limit control are that the site is small and as infill development it is difficult to comply; there is no impact on amenity from the upper level; it is a long and narrow block and the upper level accommodation is recessed from the street frontage with little visual impact; there are many buildings with recessed top levels visible from the site; and there is little consistency on the eastern side of Wyndham Street. Mr Lovell agreed that the mere fact that this is infill development does not constitute exceptional circumstances, and that the upper level did not technically fit the definition of "attic" in the DCP. While agreeing that the heights along Wyndham Street were varied, Ms Aziz' evidence was that the heights varied from 9m to lower and there was no variation above the control. Ms Aziz agreed that the site is narrow, however it is not unusual in that constraints limit development on it. In her opinion the site is suited to commercial rather than residential development.
While not determinative, the provisions of the DCP are a fundamental element and a focal point of the decision-making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. The DCP itself recognises that departures from the height limits may be justified. It was common ground that the proposed development is infill development, and Mr Lovell accepted that that alone does not constitute exceptional circumstances justifying departure from the height limit. The applicant submitted that the inclusion of the top floor unit enables at least one unit in the development to achieve solar access. I am not persuaded that that would constitute exceptional circumstances such as to vary the height limit. The evidence from the view supports Ms Aziz' evidence that variations to the 9m control along Wyndham Street are variations below 9m, and that the buildings on either side comply with the 9m height limit. In that context, I am not satisfied that any of the other factors identified by Mr Lovell constitute an exceptional circumstance as required in the DCP, or are such as to warrant departure from the general controls provided in it. Approval of the proposed development would not assist in achieving the objectives of the height control, which include that the building be compatible and complementary with its context.
The proposed development has an FSR of 1.84:1, which exceeds the maximum FSR set out in part 2.2 of Part E of the DCP of 1.5:1. The objective of the control is:
To control the floor space of new development to ensure its intensity respects and reflects the overall built form and does not detrimentally affect the amenity of the area.
Mr Lovell's evidence was that the "excess" floor space is represented by approximately 72.6sqm, and that the upper level of the proposed building has a gross floor area of approximately 100sqm; in his opinion, the visual impact of the upper level is relatively minor and acceptable. Having concluded that departure from the height limit is not warranted in the context of other development in the locality, I am not persuaded that the departure from the control in the DCP represented by the additional level would be consistent with the objective of ensuring that the intensity of development respects and reflects the overall built form.
Amenity: SEPP 65 RFDC
The Council contends that the proposed development does not comply with the amenity requirements in Principle 7 of the SEPP65 RFDC, on the basis that there is insufficient separation between proposed unit 2 and the adjoining site; that the proposed units cannot achieve acceptable levels of solar access to principal living areas; and that the proposed units cannot meet the requirement that 60 percent of units benefit from natural cross flow ventilation.
The expert planners agreed that the building separation is acceptable, and this contention was not pressed. The planners agreed that solar access cannot be provided to 70 percent of the living rooms or private open space for a minimum of 2 hours between 9am and 3pm due to the orientation of the site and the nature of surrounding development; however, they disagreed as to whether the available solar access was acceptable in the circumstances. The planners disagreed on whether the restrictions on the opening of windows to meet acoustic requirements was acceptable.
The Council submits that a less intensive development could be able to achieve improved levels of solar access. The applicant submits that while accepting that not all the apartments would get good direct sunlight, overall the aspect and daylight access is not deficient in the context of the general Sydney housing market. The RFDC states that it is acceptable to have up to 10 percent of units facing south. Solar access for unit 4 is good, and the other units demonstrate good design with internal courtyards and orientation. If the top level unit were removed the proposed development would comply with the FSR and building height controls, however that would mean that none of the units would achieve direct solar access.
Mr Lovell's evidence was that the east-west orientation of the site with the adjoining building to the north limits solar access to the site during the midday period in mid winter, and that the proposed apartments incorporate main living rooms and private open space oriented towards the east and/or west, and internal solar access has generally been maximised in the context of the site constraints and orientation. Solar access has been maximised through provision of a single, two storey, apartment oriented towards the rear boundary with the upper level incorporating an internal void to the living room below, and units 1 and 3 have been designed with recessed balconies along the Wyndham Street frontage to provide north facing openings to the open plan living areas extending as corner windows on the western faade.
Part 3 Building Design of the RFDC includes provisions for building amenity, including daylight access and natural ventilation. The rule of thumb for daylight access is:
Living rooms and private open spaces for at least 70 percent of apartments in a development should receive a minimum of three hours direct sunlight between 9am and 3pm in mid winter. In dense urban areas a minimum of two hours may be acceptable.
The RFDC states that it is better design practice to limit the use of lightwells as a source of daylight.
Part 5.1 of the DCP includes as a control that solar access reaching principal living area windows and to a minimum of 50 percent of the private open space is maintained for at least two hours, between 9am and 3pm at 21 June.
Mr Lovell was of the opinion that the extent of solar access is reasonable and acceptable in the circumstances. Ms Aziz accepted that all the units would get daylight, but not sunlight, through the voids. Ms Aziz agreed that if skylights were incorporated into the design, there could be additional daylight, however she was of the opinion that this was not an appropriate way to provide for direct sunlight in a new development.
The shadow diagrams provided by the applicant were prepared for the proposed development including, and excluding, the development application for 10 Henderson Road currently under assessment. Based on these shadow diagrams, unit 2 would receive approximately 2.5 hours of sunlight to the living rooms and a portion of private open space between 9.30am and midday in mid winter. If 10 Henderson Road is built, that would be reduced. Mr Lovell and Ms Aziz agreed that at midday there would be slivers of sunlight to the upper level window which would extend to a limited extent to the living and dining areas below. Units 1 and 3 would receive solar access to the main living rooms and portions of their private open space for approximately 1.5 hours between 1.30 and 3pm. Unit 4 would receive solar access to the main living room and the majority of private open space for approximately 1 hour between 2pm and 3pm.
Based on the evidence of the expert planners, and the shadow diagrams provided by Mr Lovell, I am satisfied that none of the proposed units can achieve three hours of direct sunlight between 9am and 3pm, or even the two hours regarded by the RFDC as acceptable in dense urban areas. The rule of thumb in the RFDC is not determinative, however its provisions are relevant to an assessment of the amenity provided to residents of the proposed units. None of the units meet the requirements of the DCP for solar access.
The RFDC provisions for natural ventilation state as their objective to ensure that all habitable rooms have direct access to fresh air and to provide natural ventilation in non-habitable rooms, and to reduce energy consumption by minimising the use of mechanical ventilation. Part 2.4.2 of the DCP states as an objective ensuring that residential flat buildings are naturally ventilated to a high standard.
Based on the acoustic evidence, not all windows to habitable rooms in all units could remain open and achieve compliance with acoustic requirements. The Acoustic Dynamics report of 10 March 2010 notes that to provide occupants of the development an appropriate acoustic amenity, "mechanical ventilation is required to be provided to all residential units within the proposed development". Mr Lovell's evidence was that while some mechanical ventilation would be required, the opening of some windows would contribute to natural ventilation. I am not satisfied that the restrictions on natural ventilation required in order to address acoustic issues are consistent with the design principles and objectives of the RFDC and the DCP.
Conclusion
It was common ground that the site is constrained, in terms of its east-west orientation on a narrow site, the adjoining hotel to the north, and its location on a busy road. The difference between the parties on solar access and cross ventilation was essentially whether the limitations noted above are acceptable. The applicant's position is that future residents of the proposed development would occupy the units in full knowledge of the acoustic environment of the site. Development for the purposes of a dwelling house is a permissible development in the 10- Mixed Uses zone, and while the fact that a particular use may be permissible is a neutral factor, planning decisions must generally reflect an assumption that, in some form, development consistent with the zoning will be permitted: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399. However, the proposed development must be assessed against the applicable criteria under s79C of the Act, including the provisions of SEPP65 and the RFDC which are intended to ensure appropriate amenity and design for new residential flat developments. It may be that a smaller development of the kind proposed could be designed to optimise amenity in accordance with design principle 7, or that a different form of development that was also permissible in the Mixed Uses zone could be designed. Whether or not that is the case, the proposed development in the form presently before the Court fails to provide appropriate amenity in accordance with the principles in SEPP 65 and the RFDC, and is not consistent with the DCP controls, and consent should be refused.
The orders of the Court are:
1. Appeal dismissed.
2. Development Application D/2009/2021 for construction of a mixed use four storey building comprising a commercial office suite, residential apartments, ancillary car parking and strata subdivision, at 56-58 Wyndham Street Alexandria, is refused.
3. The exhibits are returned except for exhibits A, F and 2.
Linda Pearson
Commissioner of the Court
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Decision last updated: 14 February 2011
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