Mateer v The Council of the City of Sydney

[2015] NSWLEC 1073

Land and Environment Court

New South Wales

Medium Neutral Citation:	Mateer v The Council of the City of Sydney [2015] NSWLEC 1073
Hearing dates:	4-5 February and 11 March, 2015
Date of orders:	24 March 2015
Decision date:	24 March 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld. 2. Modification Application No. D/2013/685/A to modify the development consent for a residential flat building at 74 Mitchell Road, Alexandria is approved, subject to the conditions of consent at Annexure ‘A’. 3. The exhibits, other than exhibits 1 and A, are returned.
Catchwords:	MODIFICATION APPLICATION: approved residential flat building; exceedance of the floor space ratio development standard; precedent; whether the proposal has an appropriate presentation to the street.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Rianon Mateer (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel: Dr S. Berveling (Applicant) Mr A. Pickles (Respondent) Solicitors: Conomos Legal (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	10773 of 2014

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act 1979 against the refusal of Modification Application No. D/2013/685/A, to modify Development Consent D/2013/685 for a residential flat building (the consent) by adding additional rooms with dormers within the approved form of the roof and other modifications (the proposal), at 74 Mitchell Street, Alexandria (the site), by the Council of the City of Sydney (the Council).

Issues

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

• The floor space ratio (FSR) of the proposal of exceeds the development standard for the site and the proposal does not meet the objectives of the FSR development standard;

• The proposal would create an undesirable precedent for further significant breaches of the FSR development standard and the cumulative effect of multiple developments that seek additional floor area may lead to inconsistencies with the desired future character of the area;

• The proposal does not have an appropriate presentation to the street, as the skillion roof extension to the street front elevation of the roof of the proposal does not improve the quality and amenity of the public domain.

3. The applicant contends that the requirements in relation to the ventilation of the car park added to the consolidated conditions of consent (exhibit 7) at condition 84 (b), (c), (d) and (e), do not relate to modifications made to the consent by the proposal. The Council’s position is that a vertical duct attached to the lift shaft may have been able to be used to ventilate the car park in the approved development (because it extended to the roof cavity), however the proposal has placed an ensuite bathroom in the attic level over the top of the duct, so it cannot now be used to ventilate the car park. The applicant maintains that the vertical duct attached to the lift shaft was not intended to ventilate the car park and that the car park can be ventilated in accordance with the relevant condition of the consent without further modifications to the proposal.

The site and its context

4. The site is located on the eastern side of Mitchell Road, between Buckland Street and Fountain Street. The site has an area of 685 square metres.

5. There is a one and two storey former hotel building adjacent to the site to the north-east, on the corner of Buckland and Mitchell Roads and a two storey warehouse building approved for a three and four storey mixed use development adjacent to the site to the south-west, on the corner of Fountain Street and Mitchell Road. The ‘Buckland Green’ development is to the rear of the site and fronts Buckland Road, Fountain and Belmont Streets. The ‘Buckland Green’ consists of four and five attached dwellings in three storey terrace rows, with the upper storey contained in an attic with dormers with pedestrian pathways and gardens through the site.

The approved development, the amended proposal and renotification

6. The consent was granted on 24 February 2014 for the demolition of existing structures, the remediation of land and construction of a 4 storey building containing 15 residential units (two studios, seven 1 bed units, five 2 bed units and one 3 bed unit), ground level parking for 10 cars, a communal roof terrace and the strata subdivision of the development.

7. The proposal is to modify the consent as follows:

• outdoor terrace added to the rear of unit 3;

• unit 4, 1 bed adaptable unit, added;

• unit 5 reduced from 3 bed unit to a 1 bed unit;

• unit 13 increased from a 1 bed unit to a 2 bed unit, with the second bedroom located on the proposed attic level;

• unit 14 increased from a 1 bed unit to a 3 bed unit, with the second and third bedrooms located on the proposed attic level;

• unit 15 increased from a 1 bed unit to a 2 bed unit, with the second bedroom located on the proposed attic level;

• the addition of an attic level within the approved roof space, with skillion roof extensions facing the street and the rear to accommodate the rooms in the attic;

• changes to levels to reduce floor to ceiling heights in order to accommodate the attic level; and

• minor changes to layouts.

8. The Court granted the applicant leave to rely on an amended proposal (exhibit A) at the commencement of the hearing. The amendments made to the proposal are as follows:

• the skillion roof extensions to the attic level units 13 and 15 are deleted on the street front elevation and relocated to the rear elevation, each with an outdoor terrace off the second bedroom; and

• the attic floor level is lowered to increase the floor to ceiling height on the attic level to 2.7m.

9. The Council did not oppose the granting of leave for the applicant to rely on the amended proposal, however, Mr Pickles submitted that the amended proposal should be renotified, as the changed location for balconies off the attic level bedrooms of units 13 and 15 results in a different, albeit minor, privacy impact on development to the east of the site and possibly a minor privacy impact on units within the approved proposal to the south-west of the site, when compared to the original modification application.

10. The Sydney Development Control Plan 2012 (DCP 2012) Schedule 1 ‘Advertising and notification’ is not definitive on whether an amendment to an application, resulting in a minor environmental impact, should be renotified. The parties disagreed on the correct interpretation of clause 1.3 of Schedule 1 of DCP 2012; Mr Pickles submitting that the amended proposal is caught by the phrase, ‘environmental impacts considered to be minor [are to be renotified for the reduced period of 14 days]’ and Dr Berveling submitting that only amendments resulting in ‘significant additional environmental impacts’ required renotification.

11. For abundant caution, I adjourned the hearing following closing submissions, to allow for the amended proposal to be renotified for 14 days. The applicant gave an undertaking to meet the cost of the renotification.

12. Two submissions were received by Council during the period of renotification of the amended proposal.

Planning framework

13. The site is zoned B4 Mixed Use pursuant to Sydney Local Environment Plan 2012 (LEP 2012). The maximum building height for the site is 15m (Height of Buildings map Sheet HOB_010, LEP 2012) and the FSR for the site is 1:1 (Floor Space Ratio Map Sheet FSR_010, LEP 2012). The objectives of the B4 Mixed Use zone are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure uses support the viability of centres.

14. The relevant objectives of the FSR development standard at sub-cl 4.4(1) of LEP 2012 are:

(b)          to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,

(c)          to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,

(d)          to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the                           amenity of that locality.

15. Clause 6.14 of LEP 2012, ‘Community infrastructure floor space at Green Square’, permits greater densities where community infrastructure is also provided. The site is located within ‘Area 6’ (Floor Space Ratio Map Sheet FSR_010, LEP 2012) for which cl 6.14(2)(b) permits an additional FSR of 0.5:1. The consent included a monetary contribution in the form of a Voluntary Planning Agreement (VPA) (exhibit 8) for public domain works. The VPA includes the following definition:

Development Consent means the consent granted by the Council to the Development Application for the Development identified in Item 4 of Schedule 1 and includes all modifications made under section 96 of the Act.

16. Clause 6.21 of LEP 2012, ‘Design Excellence’, includes, at (4)(b), in considering whether the proposal exhibits design excellence, the consent authority must have regard to whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain.

17. The site is within the Alexandria Park locality as identified by the description and principles at clause 2.5.1 of DCP 2012. The relevant description of the locality includes, ‘Key changes in the area include the treatment of Botany Road as it evolves as a public transport corridor, and the transition of the western part of the neighbourhood from industrial uses to harmonious, high-quality mixed-use development’. The relevant principle is (i), which states:

‘Facilitate the transition of the area from employment-based uses to primarily mixed use and residential. Commercial and industrial land uses can continue in this neighbourhood provided that the operational impacts of non-residential uses can be appropriately managed for residential amenity’.

Public submissions

18. One resident objector, representing a local community group, provided evidence on site at the commencement of the hearing. Her objection to the proposal can be summarised as:

• the proposal does not comply with the relevant planning controls;

• the proposal does not reflect the desired character of the suburb and would impact on the amenity of area;

• the proposal is an over-intensification of the site;

• the proposal will set an undesirable precedent for over-development; and

• the proposal does not improve the approved development.

19. The Court, in the company of the parties and their experts, reconvened on-site on 11 March, 2015, following the renotification of the amended proposal, to hear from the same resident objector again and from a resident objector from the ‘Buckland Green’ development, directly to the rear of the site. The Court, the parties and their experts viewed the site from the outdoor living area and bedrooms of the terrace house of the resident objector from ‘Buckland Green’. He sought clarification on the levels and detailing of the approved development in the eastern corner of the site, adjacent to his dwelling, and the applicant provided an explanation of the approved development with reference to the height of the existing wall on his property.

Expert evidence and submissions

20. Expert planning evidence was provided by Ms Siobhan Fox-Roberts and Mr Andrew Thomas on behalf of the Council and Mr Anthony Betros on behalf of the applicant. Expert urban design evidence was provided by Mr Geoff Baker on behalf of the applicant. The four experts prepared a joint report (exhibit 6).

21. According to Ms Fox-Roberts, the proposal is for an additional 84.3sqm of floor area and this is 114.4sqm of floor area beyond the FSR development standard for the site. In her view, the proposal does not demonstrate that compliance with the FSR development standard is unreasonable or unnecessary, as the additional floor space is not negligible or minimal and would not be indiscernible in terms of visual impact, as the dormers in the approved roof make it a five storey development when viewed from the street.

22. In Ms Fox-Roberts opinion, objectives (b) and (d) of the FSR development standard are not met by the proposal. Objective (b) is not met because the proposal will result in a greater density on the site than envisaged by the FSR map, by adding a 2 bedroom unit, when compared to the approved development. The greater density proposed on the site means that more people will be living in this development and this will generate more traffic, both pedestrian and vehicle.

23. In Mr Betros’ opinion, the proposed density is consistent with the density proposed by the standard and one extra unit will have an imperceptible impact on the locality. In Mr Baker’s view, an increase in pedestrian traffic is desirable as it supports Green Square.

24. Dr Berveling submits that objective (b) of the FSR development standard, at sub-cl 4.4(1) of LEP 2012, is met by Council’s preparation of the FSR map.

25. In Ms Fox-Robert’s view, objective (d) is not met by the proposal as the proposed roof additions compromise the architectural integrity of the approved development and should not be described as a dormer as the addition to the roof springs from the ridge of the approved development. According to Mr Baker, the proposed roof dormer to the street front elevation will appear as a dormer and has architectural merit and relates to the context, where there are other examples of roof dormers. The dormer sits comfortably within the overall composition, in his view.

Findings

26. A maximum base FSR of 1:1 is permitted for the site and the approved development has been granted an additional 0.5:1 FSR on the basis of a monetary contribution towards community infrastructure. The consent included the monetary contribution in the form of the VPA (exhibit 8) for public domain works. The VPA includes the following definition:

Development Consent means the consent granted by the Council to the Development Application for the Development identified in Item 4 of Schedule 1 and includes all modifications made under section 96 of the Act.

27. I accept that the definition of development consent in the VPA, made pursuant to cl 6.14 of LEP 2012 and forming part of the consent granted 24 February 2014, anticipates a modification application and that as a consequence, no adjustment to the agreed contribution is required should a modification application be approved.

28. The approved development has a FSR of 1.54:1, which exceeded the FSR development standard by 27.4sqm and the applicant relied on the provisions of cl 4.6 of LEP 2012 to seek an exception to the FSR development standard, on the following basis (exhibit 2, f 284):

The distribution of floor space has been provided for in an appropriate manner as evidenced by the suitable streetscape presentation, limitation to only 3 storeys to the rear and landscaped side and rear setbacks.

The proposal maintains amenity to surrounding neighbours with regard to solar access, acoustic and visual privacy.

The development achieves high internal performance to the units in terms of solar access, ventilation and unit sizes.

The proposal provides a variety of housing types and densities consistent with the zone objectives.

The development complies with car parking, bicycle parking and motorbike parking controls and the surrounding pedestrian and vehicular network can accommodate the additional residential density as proposed.

The site is serviced by existing infrastructure including water, sewer, electricity, gas and telecommunications.

29. The applicant’s reasons for an exception to the FSR development standard were accepted by Council as being well founded and consent was granted.

30. The parties agreed that while a written request for a cl 4.6 exception to the FSR development standard is not required for a modification application, the considerations within cl 4.6 play a role in providing guidance to a merit assessment of the proposal. In order for development consent to be granted to a development that contravenes a development standard in LEP 2012, at cl 4.6, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone; that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify contravening the development standard.

31. I accept the applicant’s submission that objective (b) of sub-cl 4.4(1) of LEP 2012, ‘to regulate the density of development, built form and land use intensity’ is satisfied by the preparation of Council’s FSR map. However, the second limb of the objective, ‘to control the generation of vehicle and pedestrian traffic’, in my view, to be satisfied requires the development to be consistent with the FSR development standard for the site, or for compliance with the development standard to be found to be unreasonable or unnecessary in the circumstances.

32. The following is a comparison of the accommodation of the approved development and the proposal:

Units	Approved development	Proposal
studio	2	2
1 bed	7	7
2 bed	5	6
3 bed	1	1

33. The fundamental change proposed by the modification application is the overall addition of a 2 bedroom unit to the approved development and the addition of the skillion roof extensions or dormers to the approved form of the roof. The other modifications made by the proposal, listed at par 7, are minor and relate to improved amenity and not to an increase in the intensity of the development.

34. I accept that the proposal may result in a greater density on the site than possibly envisaged by the FSR development standard, by adding another 2 bedroom unit; however the addition of a 2 bedroom unit to the approved development and dormers in the approved roof form do not offend any of the objectives for the FSR development standard in LEP 2012.

35. While it is impossible to predict with any certainty how many people will be living within this development at any one time, I do accept that an increase of one unit may well result in more people living in the proposal when compared to the population of the approved development. Nevertheless, I concur with Mr Betros’ evidence that the difference in intensity between the approved development and the proposal would be imperceptible and as such the proposal would have a negligible impact on the locality and the generation of vehicle and pedestrian traffic and that the intensity of the proposal is commensurate with the capacity of existing and planned infrastructure. For this reason, I am satisfied that the proposal meets objectives (b) and (c) of the FSR development standard objectives at sub-cl 4.4(1) of LEP 2012, to control the generation of vehicle and pedestrian traffic and to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure.

36. I accept the evidence of Mr Baker, that the proposed skillion roof addition in the street elevation will appear as a dormer, has architectural merit and relates to the context, and that the dormer sits comfortably within the overall composition. I accept that the dormer will result in the development reading as five storeys; however I am content that the dormer in the street elevation is suitably discrete and recessive in the overall composition of the development. I do not accept that the additional floor space, achieved by creating an attic level within the form of the approved roof and the addition of a dormer to the street elevation, would be discernible when comparing the bulk and scale of the approved development with the proposal. The proposed dormers have no amenity impacts on neighbouring development. For this reason, I am satisfied that the proposal is consistent with objective (d) of the FSR development standard at sub-cl 4.4(1) of LEP 2012, to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.

33. I am satisfied that the proposal remains consistent with the reasons relied on by the applicant in the cl 4.6 request for an exception to the FSR development standard and accepted by Council as being well founded, quoted above at par 28. While the dormers at the rear of the roof will result in the presentation of the proposal at the rear being 3 storeys with a fourth storey of accommodation within the roof, with the addition of the two dormers; the overall presentation of the proposal remains consistent with the approved development.

34. I accept that precedent can be a valid planning consideration; however, in this case, the circumstances are unique to the modification application and, in my view, are not readily transferable to other sites in the area. Any future application should be considered on its own merits.

35. In regard to the applicant’s contention relating to the conditions of consent 84 (b), (c), (d) and (e), added to the consolidated version of the condition (exhibit 7), regarding the ventilation of the car park, I am of the view that the conditions can be validly added to the consent on the basis that the proposal changes the arrangement of the vertical ducting adjacent to lift core at the proposed attic level, whether or not it was the intention of the applicant to use the duct to ventilate the car park. The development must comply with the relevant Australian Standards and relevant provisions of the Building Code of Australia, regardless of whether or not they are incorporated as conditions in the consent. If compliance with the relevant standards generates an amendment to the built form of the development (other than an amendment specified in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008), a modification application would be required, regardless of whether or not this is stated as a condition in the consent. Therefore, the added conditions of consent make little material difference to the consent and merely provide a checklist for the certifier, so I am content to leave them in the consolidated conditions of consent.

Conclusion

40. The proposal adds a 2 bedroom unit to the approved development. While I accept that an increase of one unit may result in more people living in this development, I agree with Mr Betros’ evidence that the difference in intensity between the approved development and the proposal will have an imperceptible impact on the locality and the generation of vehicle and pedestrian traffic and that the intensity of the development is commensurate with the capacity of existing and planned infrastructure. For this reason, I am satisfied that the proposal meets objectives (b) and (c) of the FSR development standard objectives at sub-cl 4.4(1) of LEP 2012.

41. I accept the Mr Baker’s evidence that the proposed roof dormers will appear as dormers in the approved gable roof form, that the change to the roof form has architectural merit and relates to the context, and that the dormer in the street elevation sits comfortably within the overall composition. For this reason, I am satisfied that the proposal reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality and is consistent with objective (d) of the FSR development standard at sub-cl 4.4(1) of LEP 2012.

42. For these reasons, I am satisfied that the proposal is consistent with the objectives of the B4 Mixed Use zone and the FSR development standard in LEP 2012 and that it is appropriate, in this instance, to provide a degree of flexibility in applying the FSR development standard and that the proposal can be granted consent.

Orders

43. The orders of the Court are:

1. The appeal is upheld.

2. Modification Application No. D/2013/685/A to modify the development consent for a residential flat building at 74 Mitchell Road, Alexandria is approved, subject to the conditions of consent at Annexure ‘A’.

3. The exhibits, other than exhibits 1 and A, are returned.

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Susan O’Neill

Commissioner of the Court

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Decision last updated: 31 March 2015