Loview Pty Limited v Rockdale City Council

[2003] NSWLEC 361

>

Land and Environment Court

of New South Wales

CITATION:

Loview Pty Limited v Rockdale City Council [2003] NSWLEC 361 revised - 24/12/2003

PARTIES:

APPLICANT
Loview Pty Limited

RESPONDENT
Rockdale City Council

FILE NUMBER(S):

10743 of 2003

CORAM:

Bly C

KEY ISSUES:

Development Application :- a four and five-storey residential flat building - internal and external amenity impacts - building setbacks and streetscape

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Rockdale Local Environmental Plan 2000
Development Control Plan No. 35

CASES CITED:

DATES OF HEARING:

15/12/03 - 16/12/03

DATE OF JUDGMENT:

12/24/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. Craig, QC with
Mr R. Lancaster, barrister
instructed by
Ms R. Fife, solicitor
of Mallesons Stephen Jaques

RESPONDENT
Mr. J. Cole, solicitor
of Abbot Tout

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10743 of 2003

Bly C

24 December 2003

Loview Pty Limited

Applicant
v

Rockdale City Council

Respondent

Judgment

Introduction

1 This appeal relates to a development application for the erection of a four and five-storey residential flat building comprising 30 dwellings in two buildings separated by a central landscaped courtyard, above basement parking for 45 vehicles at Nos 6 -14 Princess Street, Brighton -Le -Sands.

2 The site is situated on the south side of Princess Street between Moate Street and the Grand Parade. It has a rear frontage to Saywell Lane which is about six metres wide. Building A has a frontage to Princess Street and Building B has a frontage to Saywell Lane.

3 The site has an area of about 1,520 square metres and a frontage of about 38 metres to Princess Street. It is generally flat.

4 The site presently contains five of the eight semi-detached single-storey cottages situated between the multi-storey Novotel Hotel on the comer of Grand Parade and the four-storey residential flat building on the comer of Moate St at 22 -28 Princess Street. Generally opposite the site there are 2, 4, 7 and 8 storey residential flat buildings and a pair of single storey attached dwellings.

5 Behind the site on the opposite side of Saywell Lane are a number of mixed commercial and residential buildings which have their principal frontage to Bay St and have heights of up to 6 stories. Saywell Lane provides access to the Novotel Hotel's loading dock and serves as a service lane for a number of businesses in Bay St as well as providing access to car-parking areas for the residential buildings.

Statutory Provisions

6 The site is subject to the provisions of Rockdale Local Environmental Plan 2000 ("LEP 2000") and Development Control Plan No. 35 -Residential Flat Buildings ("DCP 35").

7 Under LEP 2000 the site is zoned Residential 2 ( c) in which zone the proposal is permissible with development consent. Clause 12 (3) of the LEP requires that:

(3) except as otherwise provided by this plan, consent must not be grantedfor development on land within a zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of the zone.

8 The relevant objectives of the 2 (c) zone are:

(a) to encourage a variety of housing types, including two and three-storey residential flat buildings, and


(b) to facilitate a higher density and diverse style of residential buildings in the form of residential flat buildings on appropriate sites, and

(c) to permit, in certain areas, three-storey residential flat buildings, where this is the predominant existing housing form or where land is close to services and amenities.

9 Clause 31 (d) ofLEP 2000 sets a generally applicable maximum building height of3 stories for the 2 (c) zone which height is exceeded by the proposal. As a consequence the applicant has provided an objection pursuant to State Environmental Planning Policy No.1 - Development Standards ("SEPP I" ) LEP 2000 does not contain any particular objectives for this development standard. However DCP 35 contains the same building height standards as those in LEP 2000 together with associated objectives. These objectives were utilised in the SEPP 1 objection and there was no objection to this approach. They are:

• To ensure that new development is in character with and sympathetic to the scale of the adjacent residential buildings and the surrounding streetscape.
• To ensure development has minimal impact on neighbouring properties in terms of building dominance, overshadowing, privacy and views.
• To minimise the impact of multi-unit housing in areas where there is substantial detached housing.

10 Other relevantly applicable requirements of DCP 35 include allotment area and dimensions, site amalgamations, density, design and streets cape, overshadowing, building setbacks,landscaping and open space, visual and acoustic privacy, traffic and car-parking. There was no dispute that the proposal fails to comply with the various applicable setback requirements particularly in the context of streetscape and amenity impacts.

11 Because the transitional provisions of State Environmental Planning Policy No. 65 -Design Quality of Residential Flat Development ("SEPP 65") are applicable to this application it was agreed that only the design principles in Part 4 ("the design principles") are relevant. These include matters relating to site context, building scale and built form, density, landscape, amenity and aesthetics.

12 The application was advertised and 14 objections were received. These objections include concerns in relation to the following:

• Traffic congestion in Saywell Lane
• Potential damage to surrounding properties
• Loss of views towards the city and Botany Bay
• .Adverse visual impacts resulting from the remaining half of a semi detached house
• Inadequate building setbacks .Excessive of building height
• Adverse impacts on the streetscape and inappropriate building form .Undesirable precedent

13 Following this notification a council officer's report was prepared which reached the following conclusions:

This application represents a significant departure from the style of development which would normally occur under the provisions of Council's residential flat building DCP. It also proposes a higher development than is permitted under the statutory height limit for the 2 (c) zone. However, the merits of the proposal, in terms of its alignment to the contemporary design principles which are being promoted are clearly evident. The built form will sit comfortably within the existing character of the area and will provide a suitable transition in scale from the much higher Novotel structure, down to the four( 4) storey development on the corner of Princess Street and Moate Avenue.

The merits of the proposed development, combined with the uniqueness of this site, outweigh the significant numerical departures to council's adopted requirements. The proposal is considered to be a good design response to the context and sitting, as well as the constraints. The application is recommended for approval as a deferred commencement consent...

14 The proposal was also considered by a the Southern Sydney Group Councils Design Review Panel to ("the review panel" ) which decided that following a number of amendments to the design it was considered to be of good quality and that the amenity issues had been resolved. There was nevertheless some concern in relation to precedent for future built forms in both Saywell Lane and Princess Street. The panel considered the proposal to be a generally appropriate response to the existing large scale buildings surrounding the site. It was acknowledged that the development would have a very uncomfortable relationship with the adjacent semi-detached dwellings but given the inevitability of redevelopment of these properties this was not of concern.

15 However whilst the panel agreed that the development is of a very good quality design it raises significant issues in relation to the precedent it would set by exceeding the existing height and density controls, its alignment to the lane and the number of storeys facing Princess Street. No mention is made of the non-compliances with the building setback requirements in DCP35.

16 On 27 August 2003 the council issued a notice of refusal giving the following reasons:

• Density
• Building heights
• Front, side and rear setbacks
• Landscaping
• Private open space .Visitor parking
• Lack of a structural support for the adjoining property .Zoning
• Overdevelopment of site

17 On behalf of the respondent Council expert evidence was provided by:

• Mr S Layman -architect and town planner
• Mr P Hewitt -geotechnical engineer
• Mr J Ross -hydrogeologist

18 In addition, during the site inspection, the following residents gave evidence:

• Mr L Luong -3/364 Bay St, Brighton Le Sands
• Mr O Zamora -4/364 Bay St, Brighton Le Sands
• Mr J Nayler -10/354 Bay St, Brighton Le Sands
• Ms D Dalik -14/22 -26 Princess Street, Brighton Le Sands
• Mr S Sumerville -9/22 -26 Princess Street, Brighton Le Sands
• Mr D O'Leary -21 Princess Street, Brighton Le Sands
• Mrs M McGurgan -26/13 -19 Princess Street, Brighton Le Sands
• Mr G Kahlig -18/3 -11 Princess Street, Brighton Le Sands .Mrs B Hanna -16 Princess Street, Brighton Le Sands

19 The concerns expressed by a these residents include the following:

• Amenity impacts including overshadowing, loss of views and overwhelming building size.
• Traffic generation will exacerbate existing traffic problems in Saywell Lane and parking problems in at Princess Street.
• Unsatisfactory building appearance in the streetscape.
• Insufficient building setbacks and landscaping
• The appearance of garbage bins in Princess Street .
• The cutting in half of the semi-detached house.

20 On behalf of the applicant expert evidence was provided by:

• Mr D Crane -town planner
• Mr S Pittendrigh -landscape architect
• Mr K Cottier -architect
• Mr C Hallam -traffic engineer .
• Mr R West -traffic Engineer

21 The Court and the applicant were provided with a Statement of Issues containing 16 separate issues. Taking into account the proposed conditions of consent and changes to the proposal these issues can be simplified has follows:

1. Aspects of amenity within the proposal.
2. Amenity impacts on adjoining and nearby residential properties.
3. Impacts of the proposal on the streetscape of Princess Street and
4. Saywell Lane.

22 Concern was expressed by Mr Layman that the development of the subject site would result in a 3 lot residue site to the west which would not meet the frontage requirements ofDCP 35. Given that the owner of the immediately adjoining property to the west is not interested in redevelopment and there was no persuasive evidence to suggest that this residue site would be incapable of being developed for medium density purposes I do not accept that this non- compliance with DCP 35 should be determinative of this application.

23 Both Mr Layman and the design panel were concerned about Building B's absence of a set back from the western boundary and the implications of this for any future development of the adjoining sites to the west. However I have not been persuaded that this could not be accommodated in a design for a residential flat building on this adjoining site which could also be responsive to its own circumstances and constraints.

Internal amenity

24 In relation to the internal amenity of the proposal Mr Layman was concerned about the poor solar access to the communal open space and the amenity of the bedrooms in Building B.

25 In relation to the communal open space there was no dispute that the central courtyard within the development which provides the common private open space for the residents will be almost completely overshadowed in midwinter. This was in his opinion unsatisfactory. As for the bedrooms in Building B, these would be adversely affected by the traffic using Saywell Lane, especially vehicles accessing the Novotel Hotel's loading dock.

26 Mr Crane and Mr Cottier were of the opinion that despite its limited solar access in winter the central courtyard would be satisfactory. This is because of its inherent design qualities including the especially designed landscaping and its particular architectural features. The apartments themselves being north facing would get good solar access. Mr Pittendrigh agreed that the court yard was a good space and would have good utility being protected from the elements.

27 As for the bedrooms overlooking the the lane they acknowledged that there would be impacts associated with the use of the lane especially by service vehicles. However because the number of vehicles using the lane at night is likely to be relatively low the impact on these bedrooms is not likely to be significant. Mr Cottier also said that the amenity of these affected apartments should be considered wholistically and taking into account the quality of the design and their northern aspect which provides excellent solar access they would on balance be satisfactory.

28 In relation to both of these matters I prefer the evidence provided on behalf of the applicant. I have been persuaded that as a whole and for the reasons that they have given that the internal amenity of the proposal would at least be satisfactory and the matters of concern and not sufficient to be determinative of the application.

External amenity impacts

29 In relation to external amenity impacts on surrounding properties Mr Layman essentially agreed with the concerns expressed by the residents: overshadowing of balconies of the existing residential development to the south and the property at 16 Princess Street; the excessive scale of Building B when seen from existing residential development to the south and from 16 Princess Street; and the loss of views towards Botany Bay from 22 -26 Princess Street. He pointed out that with appropriate set-backs these concerns would be resolved although such setbacks at need not necessarily be strictly in accordance with the requirements ofDCP 35.

30 Mr Cottier also pointed out that the lane has an established character comprising that of an unloved service lane and a tough urban landscape. In the vicinity of the site the lane is characterised by an absence of vegetation and the land between the lane and the buildings fronting Bay St is predominantly hard paved for car-parking and vehicular access purposes. In this context he did not accept that the one metre landscaped setback area was required and the proposal would be entirely satisfactory.

31 More particularly he did not believe that Building B, despite being five storeys would be unsatisfactory, taking into account the architectural detail of this facade including its fenestration and the use of materials. Mr Crane essentially agreed with this, particularly noting the heights of the Bay St buildings.

32 I believe that south wall of Building B would not be unattractive even though it is largely unarticulated and is softened only by fenestration and the landscaping provided in the one metre set-back. Whilst I have not been persuaded that it would be necessary to provide increased setbacks to facilitate additional landscaping and a footpath, I am nevertheless concerned at the scale of this five storey high wall, a concern which could be exacerbated if the adjoining site to the west were developed in a similar manner. It may be that with some articulation and stepping back at levels above the second storey this scale could be satisfactorily mitigated.

33 It became clear on the site inspection that a number of the apartments in the Bay St buildings would overlook Building B, however I do not accept that in the circumstances of Saywell Lane that it should be the role of this site to provide a vegetated outlook. Moreover I agree with Mr Crane that the additional setback area would be better utilised within the site for the benefit of prospective residents.

34 As for the overshadowing of the balconies associated with the apartment in 364 Bay Street, I accept the evidence of Mr Crane that solar access will meet the requirement of AM CORD and that the impact of the proposal in this regard should not be determinative of the application. However it may be that the changes I have suggested for Building B would improve this situation.

35 As for overshadowing of No. 16 Princess Street I prefer of Mr Crane's explanation that while this property is already subject to morning overshadowing it would continue to meet the requirement of AMCORD.

36 Regarding the appearance of the western elevation of Building B and whilst I accept the evidence of Mr Cottier that this wall has some architectural features it is nevertheless for the most part a tall blank wall and I can understand the concern of the owner of No. 16 Princess Street. However I do not accept that this would be a reason by itself to reject the application, particularly given the likelihood of the redevelopment of this affected property in the short to medium-term as explained by Mr Crane. In this regard and in relation to overshadowing I note that the review panel took a similar approach

37 Whilst the loss of views from some apartments in 22 -26 Princess Street is not of sufficient significance to be determinative these impacts add further weight to my later conclusions in relation to the Princess Street building setbacks in the context of streetscape.

Streetscape

38 In relation to streetscape Mr Layman's essential concerns relate to height, set-backs and landscaping. He argued that Building A does not meet the design principles in that it fails to respond to the street context in terms of the proximity of building bulk to the street and the inadequate provision of landscaping. Unlike other residential development in the street the building form would dominate the landscape within the proposal. Whilst he accepted that the proposal presents as a not unhappy composition of building elements it was not responsive to the existing residential character of the street. In the circumstances it does not meet the objectives ofDCP 35 in relation to streetscape and building appearance.

39 More particularly in relation to building setbacks he pointed out that DCP 35 requires an 8.5 metre set back for buildings of three or more stories and that this setback area is to be highly landscaped to soften the appearance of the building. Such landscaping includes the provision of larger trees that are in scale with the development. These requirements are generally reflective of existing development in Princess Street. By contrast Building A has a three- metre building setback and this setback affected by three, one metre deep louvre enclosed balconies and a fourth balcony which extends to the street boundary. Landscaping of these setback areas are further restricted by their use as private courtyards. With the absence of adequate landscaping he was of the opinion that the impact on the streetscape would be further exacerbated by the four-storey building height.

40 Mr Cottier recognised the non-compliances but was of the opinion that Building A generally satisfied the objectives ofDCP 35. He explained that the proposal would be appropriate in the streets cape because there is no consistent streets cape in this section of Princess Street where there exists a variety of building heights, scales and set-backs. He noted the scale of the Novotel Hotel and the absence of any setback where it adjoins the subject site and in this particular context he argued that the proposal provides an appropriate transition from this commercial development. In relation to development further to the west he noted that the height of the building was consistent with the building at the comer of Moate Street and the proposed building set-backs were consistent with the setbacks of the adjoining cottages.

41 He also explained that Building A provides within itself a breaking down in scale mainly as a result of the stepping in and reduction in size of the balconies. Recessed entry points and the upper floor break down the building form so that it will read as being almost three storeys thus diminishing its apparent scale. Overall he believed that the proposal would be a positive contribution to the streetscape.

42 Mr Crane was of the opinion that Building A would reinforce the established built form scale and character and the continuity of the existing streetscape in this section of Princess Street. He agreed with Mr Cottier that the proposal provided an appropriate transition from the Novotel Hotel. He also believed that the proposal was responsive to the design principles and responded appropriately to the characteristics evident in nearby residential flat buildings.

43 In relation to the impacts associated with Building A in the streets cape I prefer the evidence of Mr Layman. When considered together the existing setbacks of the existing residential flat buildings in the street and their landscaping and the requirements of DCP 35 in relation to setbacks and landscaping attract considerable weight. Despite its inherent design qualities the building nevertheless fails to respond to these requirements. The existing single story semi- detached houses attract little weight in this context because of the inevitability of their site being redeveloped.

44 I nevertheless accept the approach argued by Mr Cottier and Mr Crane in relation to the manner of Building A's transition from the Novotel Hotel into this residential area whereby a reduced setback would be appropriate. However such reduced building setbacks would be inappropriate for the majority of the site's frontage to Princess Street.

45 In relation to the impact resulting from the form of the remaining No. 16 Princess Street on the streetscape and I have given little weight to this concern. This is because I accept the evidence of Mr Crane that this property and the other remaining properties to the west are likely to be redeveloped in the short to medium term, taking into account land ownership and zoning. In addition, when viewed from the north-east the building will in part at least be screened by the landscaping to be provided on the subject site.

46 Overall however I have not been persuaded that the set-backs associated with Building A and the resulting limitations for landscaping would, in terms of streetscape, be satisfactory and this is the principal reason for my decision to refuse the application. I have reached this conclusion despite the fact that in response to objective (b) of the 2( c) zone the proposal provides a high density and diverse style of residential building on what is I consider an appropriate site for this.

47 As for building heights, whilst the objectives of the residential 2 (c) zone contemplate two and three-storey development within the zone generally, I accept that this part of Princes Street between the Novotel Hotel and Moate St can and should be distinguished because of the existence of surrounding residential flat buildings with heights of up to eight stories. In the circumstances I would have had no difficult in accepting an SEPP 1 objection in relation to building height.

48 Finally, I am not concerned about the density of the development. although in this regard I note that such exceedences would indicate an opportunity for a greater apartment yield relative to the area of the site and as a consequence one should expect a better response in tenns of set-backs and landscaping in the streetscape.

1. The appeal is dismissed.
2. Development application No. 537/02 for a residential flat building at 6 - 14 Princess Street, Brighton Le Sands is detennined by the refusal of development consent.
3. Exhibit C is retained.

______________________________

T A Bly

Commissioner of the Court

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