Legal Business Centre Pty Ltd v Wollongong City Council

[2005] NSWLEC 595

Land and Environment Court

of New South Wales

CITATION:

Legal Business Centre Pty Ltd v Wollongong City Council [2005] NSWLEC 595

PARTIES:

APPLICANT
Legal Business Centre Pty Ltd
RESPONDENT
Wollongong City Council

FILE NUMBER(S):

10183 of 2005

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Mixed use residential/commercial building
SEPP 1 objection to floor space ratio control

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Wollongong Local Environmental Plan 1990
State Environmental Planning Policy No. 1
State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development
Illawarra Regional Environmental Plan No. 1

DATES OF HEARING:

21/09/2005

EX TEMPORE JUDGMENT DATE:

09/23/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Moggach, solicitor
SOLICITORS
Kearns & Garside

RESPONDENT
Mr M Mantei, solicitor
SOLICITORS
Kells the Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

23 September 2005

10183 of 2005 Legal Business Centre Pty Ltd v
Wollongong City Council

PRELIMINARY JUDGMENT

1 This is an appeal against a refusal by Wollongong City Council (council) of a development application (1803/03) under the Environmental Planning and Assessment Act (the Act) for a mixed use commercial/residential development at 385A Crown Street, Wollongong (the site). The issues between the parties have been resolved and they are seeking consent orders from the Court.

2 I visited the site and heard from a number of residents who raised objections to the proposal including that it is too high, the site is too narrow, the lack of parking and traffic impacts, overlooking and overshadowing.

The site and its context

3 A detailed description of the site and its context, history of the development and details of the relevant planning controls is contained in the assessment report of Mr R Zwicker, Assistant Manager Development and Compliance, for the council.

4 Briefly, the site is 569.1 sq m with a frontage of 12.52 m to Crown Street and a depth of 37.15 m to Osborne Street with a fall of about 5.5 m from Crown Street. It is developed with a single storey commercial building which adjoins a two storey commercial building to the east on Crown Street. Other development along Crown Street to the east is predominantly one to two storeys. Development to the south is mainly single storey detached dwellings. To the west, on the opposite corner of Osborne Street and Crown Street, is a three storey residential flat building above ground floor parking. Diagonally opposite the site is the nine-storey Wollongong Hospital.

Background

5 The application was lodged on 21 October 2003 and proposed a seven storey commercial/residential building with a floor space ratio (FSR) of 2.2:1. The application was notified and a number of objections were received. The application was recommended for refusal by council staff and council refused the application on 21 May 2004.

6 A s 82A Review for an amended scheme was lodged. The amended scheme was a part six/ part seven storey commercial/residential building with a FSR of 2.06:1. The s82 application was recommended for refusal by council staff and was refused by council on 11 October 2004. Neither of these schemes or the assessment reports were tendered into evidence.

7 The application was then further amended and the proposal before the Court is for a part five/part six storey residential/commercial development with an FSR of 1.7:1. Basement parking for ten residential cars is accessed off a proposed 6 m wide laneway, which forms part of the southern part of the site. Parking for ten commercial car spaces is accessed off Osborne Street. Five of these spaces are within a basement area, the remainder are provided as surface parking. The building projects over part of the surface parking and due to the slope of the land this parking becomes elevated at the southern part of the site.

8 The amended application was notified and further objections were received. Mr Zwicker assessed the application and, under delegation, recommended it for approval. On this basis the parties agreed to seek consent orders from the Court. As I understand, despite the previous versions of the application and the s 82 application being determined by council, it did not consider the amended application before the Court.

9 A statement of issues does not appear to have been filed but I presume the issues before the Court are the reasons for refusal of the previous versions of the application. These raised a number of issues including non-compliance with the FSR control, height, response to context, setbacks, car parking and deep soil planting. Mr Zwicker has provided an assessment under s 79C of the Act of the current proposal which addresses these issues within the planning framework.

Planning Framework

10 The planning framework is complex but in summary the site is zoned 3(a) (General Business) under Wollongong Local Environmental Plan 1990 (LEP 1990). Commercial premises and residential flats are both permissible with consent in this zone. The site is at the edge of the 3(a) zone. Development to the west and to the south along Osborne Street is zoned 2(b) (Medium Density Residential).

11 Clause 12 of LEP 1990 permits a maximum FSR of 1.5:1 for the 3(a) zone and 0.5:1 for the Residential 2(b) zone. There are no objectives for the FSR control contained within LEP 1990. The proposal has a FSR of 1.7:1 and therefore does not comply with the FSR specified in cl 12 of LEP 1990. The applicant has submitted an objection under State Environmental Planning Policy No.1 (SEPP 1) to this standard.

12 The other relevant clause in LEP 1990 is cl 32 which requires an assessment of the aesthetic appearance of development when viewed from a main road and parking and traffic impacts.

13 Illawarra Regional Environmental Plan No.1 (REP 1) is also relevant. Clause 138 of REP 1 includes the following objectives for high rise buildings in the Wollongong urban area:

(a) to enhance the amenity and design quality of the Wollongong urban centre and of buildings within that centre; and
(b) to preserve the landscape quality of coastal and foreshore land by encouraging the erection of buildings which are designed in harmony with that landscape.

14 Clause 139(2)(b) requires the concurrence of the Director of Planning for a building with a height of more than 11 m. The proposal has a height of 18.2 metres. The Director has delegated this function to council. In granting concurrence cl 139(3) specifies the matters that must be taken into consideration, which relevantly include:

(a) the height, scale, bulk and density of the proposed building,
(b) the external appearance and materials used on the exterior of the proposed building,
(c) the relationship of the proposed building to the streetscape or landscape.

15 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) establishes ten design principles for residential flat buildings. Under SEPP 65, the Residential Flat Design Code must be considered.

16 Wollongong Development Control Plan No. 49 - Multi Unit Dwelling Development (DCP 49) and Wollongong Development Control Plan No. 6 - Commercial and Industrial Development (DCP 6) both apply to the site. The parties submitted that neither DCP specifically related to a mixed use development and that strict compliance with the DCPs controls and their objectives could not be achieved.

17 Through a complicated process, which is outlined in Mr Zwicker’s report, council adopted site specific controls (the guidelines) for the site on 28 July 2003. The guidelines were not publicly exhibited and the council resolution adopts them for a period of only 12 months, which has now expired. The status and the weight that should be given to the guidelines is unclear. I have concluded that they are an example of the development option for the site which council has previously endorsed. They appear to be an interpretation of the complicated and contradictory planning system that otherwise relates to the site for a mixed use development. However, they are relevant, not as an adopted or publicly exhibited planning policy, but as an indication of how the site could be developed to achieve an appropriate urban outcome under the current planning framework.

18 Draft Wollongong Local Environmental Plan (Draft LEP) and Draft Development Control Plan (Draft DCP) are currently on exhibition. The Draft LEP is therefore a relevant matter for consideration under s 79C of the Act but it is clearly not imminent or certain and can therefore be given little weight. I note that the controls in the draft LEP would restrict development on sites below 600 sq m with a width less than 24 m to an FSR of 0.75 : 1 and a three storey height limit.

Issues

19 The threshold issue in this case is whether the SEPP 1 objection to FSR is well founded. As stated above the FSR control does not include objectives for the control. The SEPP 1 objection, submitted on behalf of the applicant, does not specifically address the objectives or purpose of the standard, rather referring to the objectives of the plan and the objectives of the 3(a) zone. Without understanding the purpose of the FSR standard it is not possible to understand whether, despite the non-compliance, the underlying objectives of the control are met and whether compliance with the standard is unnecessary or unreasonable in the circumstances of the case.

20 Mr Zwicker also does not address the objectives of the standard but considers the variation to be reasonable on the basis that:

the site is zoned 3(a) General Business and is situated diagonally opposite Wollongong Hospital. The hospital is nine storeys or 34.63m in height. The proposed development will not be out of scale with the hospital.

The proposed six commercial/office suites on the ground floor and first floor levels of the building are also likely to provide suitable office suites for medical practitioners. The encouragement of medical practitioners (especially specialist medical practitioners) is of major strategic importance to Wollongong City and the Illawarra Region in general, in order to strengthen the overall range of medical practitioner specialists in the region, particularly since the Illawarra Region is experiencing a steady population growth rate.

The proposed variation to general 1.5:1 FSR development standard is also considered supportable on the basis that the proposed building features strong articulation and varied external material finishes to Crown Street and Osborne Street facades of the development which will ensure the streetscape character is maintained. The proposed form of the building is broken up by way of a range of vertical and horizontal elements, including differing window forms and balconies facing Osborne Street as well as a varied roofline form to the development.

Accordingly, the SEPP 1 objection is supportable on the basis that the 1.5:1 FSR pertaining to the site is unreasonable and unnecessary in the circumstances of the case.

The appropriateness of the site for proposed commercial use is not in question as it is clearly consistent with the objectives of the zone.

21 The commercial use occupies two floors of the building and can clearly be accommodated in a building that complies with the FSR standard and is therefore irrelevant to a consideration of whether a variation of the standard is reasonable. The articulation of the building assists in breaking down the overall bulk and scale but is not of itself a reason to vary the standard.

22 It is generally accepted that the key objectives of a FSR control are to limit the bulk, scale and intensity of use. Bulk and scale are generally determined by factors such as height, setback, floor plate and the relationship of built form to open space and to adjoining buildings. The SEPP 1 objection states that the proposal exceeds the standard by 0.2:1 and that this equates to 114 sq m or one residential level. The proposal clearly does not fit into the existing context, which is predominantly one to two storey development.

23 The hospital cannot be used as a reference to justify the proposal as it is a building that is not of a similar height to surrounding development but is a landmark building in the locality. The residential flat building on the opposite corner of Crown and Osborne Streets is effectively four storeys and has a height to the underside of its eaves of RL52.135m. The proposal has a height to the underside of the top floor eaves of RL57.25m. The roof feature extends to RL 60.6m. The proposal is therefore higher than the residential flat building which is higher than other buildings in the surrounding area. A development that complied with the FSR control would be one storey lower and therefore be more equivalent to the height of this opposite building.

24 The area is one which is undergoing change so the question becomes one of whether the bulk and scale of the proposal will be consistent with the likely future development. This is not an easy matter to determine as the planning controls have no height limits and the only relevant control in LEP 1990 is the FSR control. The parties pointed out that development of a similar or greater height to that proposed had been approved on sites to the east of the proposal. No details of these developments, their compliance with planning controls or the circumstances of their approvals were tendered and the consents have not been acted on. Therefore their certainty and the character that would be established cannot be determined by these approvals. However, I recognise that the area will undergo change that will result in development of increased bulk and scale than that which currently exists.

25 The question is whether the proposal and the variation to the FSR control would be appropriate within its future context. In answering this question it is reasonable to examine development that is likely to occur along Crown Street in the 3(a) zone as well as development that may occur along Crown Street and Osborne Street in the 2(b) zone. This is particularly important as the site is the last site in Crown Street in the 3(a) zone and it adjoins the 2(b) zone to its east and south. I note that Mr Zwicker’s assessment did not consider likely future development in the 2(b) zone.

26 It is not open to me to question the FSR control in LEP 1990 and I must accept that it has a proper planning purpose. It is therefore reasonable to assume that future development within the 3(a) zone would be able to achieve a maximum FSR of 1.5:1 and development within the 2(b) zone which, although permitting medium density development, would achieve a maximum FSR of 0.5:1. The proposal would need to fit into a context with a bulk and scale defined by these controls.

27 The guidelines appear to recognise the need for the development to act as an interface or transition between these two zones and also to respond to its existing context while permitting a building of greater bulk and scale that recognises the changing nature of the area. The guidelines achieve this largely by placing the bulk of the building to the north of the site and providing a landscape buffer between the adjoining residential development to the south, limiting height to five storeys plus an attic roof and setting back the upper floors above a two storey base. This form of development would provide a FSR of 1.7:1 but is contingent upon the other outcomes in the guidelines being achieved. The proposal achieves some of these outcomes but not all.

28 Mr Zwicker’s considered that the proposal generally met the guidelines. I do not agree that the proposal meets the main objectives of the guidelines that would justify a departure from the FSR controls in LEP 1990. In particular, the proposal provides no deep soil landscaping with minimal landscaping in planter boxes, a surface car park which is clearly visible from the street and two access driveways. The main pedestrian access to the building is off Osborne Street via stairs with about a 1.5m change in level between the street and the floor level. At grade access to a lift is via the car park. I do not agree that these elements meet the guidelines which clearly indicate that the ground floor should be accessible off the footpath, car parking should be in a basement which does not extend more than one metre above ground and that the building should be within a landscaped setting to the rear of the site to forms a transition with adjoining residential development.

29 I have stated above that the guidelines have little statutory weight but in assessing whether the proposed variation meets the objectives of the FSR standard, the bulk of the development in relation to its site and to adjoining buildings is satisfactorily addressed by the guidelines.

30 The site is small with a narrow width of 12.5 m and council may require a 6 m strip at the rear of the site as a future laneway, although this is not recognised in any planning controls. The relationship of the building to its site is important in determining its overall bulk and scale. While there is considerable setback of the upper levels and the bulk of the building is placed to the front of the site, the rear of the site is largely occupied by driveways and parking levels and provide a very unsatisfactory relationship with the adjoining residential development, the streetscape and the building itself.

31 The other objective of a FSR standard is to control intensity of use. In this case the number of residential units and commercial suites generate a demand for car parking that require more than one level. Due to the narrowness and slope of the site it is difficult to provide a single access driveway as there is not sufficient width for an access ramp or for the parking to all be below street level. A car lift may need to be provided for more than one level of basement car parking which could address these constraints. The current proposal results in almost the whole site being covered with parking, some of which is surface parking, no deep soil planting and limited landscaping and more than one access driveway. These factors result in an unsatisfactory relationship with the streetscape and surrounding development. A less intense use of the site would require less car parking and potentially less impact.

32 The building has a number of positive features but overall I find that the bulk and scale do not relate to its existing or likely future context or meet objectives of a FSR control. Consequently, compliance with the FSR standard is not unreasonable or unnecessary in the circumstances of the case and the SEPP1 objection is not well founded. On this basis the application must fail and I do not accept the consent orders sought by the parties.

33 As I have rejected the SEPP 1 application, I have not considered other aspects of the proposal or addressed the other concerns of the residents. A number of the issues addressed above, under FSR, would be relevant to a consideration of the proposal under the other controls applicable to the site.

34 Following my findings, the parties have requested that they be given the opportunity to consider this judgment and whether the proposal can be amended. I therefore will not make final orders at this stage but agree to an adjournment to a telephone call over at a date to be fixed.

_______________________
Annelise Tuor
Commissioner of the Court
rjs