N.A.E.D Nominees Pty Ltd v Waverley Council

[2005] NSWLEC 330

Land and Environment Court

of New South Wales

CITATION:

N.A.E.D. Nominees Pty Ltd v Waverley Council [2005] NSWLEC 330

PARTIES:

APPLICANT
N.A.E.D. Nominees Pty Ltd

RESPONDENT
Waverley Council

FILE NUMBER(S):

11010 of 2004

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Alterations and additions to a bottle shop with apartment above - non-compliance with maximum floor space ratio - overshadowing impact - view loss

LEGISLATION CITED:

Waverley Local Environmental Plan 1996
State Environmental Planning Policy No. 1

DATES OF HEARING:

17/06/2005

EX TEMPORE JUDGMENT DATE:

06/17/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay, barrister
SOLICITORS
Aitken & McLachlan & Thorpe

RESPONDENT
Mr S Brockwell, barrister
SOLICITORS
Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

17 June 2005

11010 of 2004 N.A.E.D. Nominees Pty Ltd v Waverley Council

JUDGMENT

1 This is a class one appeal No. 11010 of 2004 between N.A.E.D. Nominees Pty Ltd v Waverley Council regarding the refusal of consent for alterations and additions to an existing bottle shop and apartment at No. 218 Military Road, Dover Heights.

2 The site is a level lot on the corner of Military Road and Blake Street. It is 14.85 m to Military Road and 21.36 m to Blake Street with a site area of 370 sq m. It is zoned Neighbourhood Business 3(c) under the Waverley Local Environmental Plan 1996.

3 There are some other allotments on opposite corners to the site also zoned 3(c). The subject site has Residential 2(a) zone on its western and southern sides. The houses on those lots are No. 216 Military Road on the south and No. 51 Blake Street on the west.

4 The proposal is to retain the bottle the shop but convert the vehicle drive through into two garages with two spaces each and extend to the south over the garages on the second storey and add a third storey to provide two apartments in a maisonette style. The maisonettes are three bedrooms each and they require a two-car garage each. Thus the bottle shop drive through conversion to two garages.

5 The maisonettes are to be accessed on the second storey by a shared internal stairway. On that floor, each has a combined living, dining and kitchen with a bathroom and laundry. There are large sliding glass doors on the west onto separate decks for each maisonette from which there are harbour views to the bridge and opera house. Each maisonette has 3 bedrooms on the third storey. The main bedrooms each have a balcony facing west. They would have panoramic views over the CBD, the opera house, the bridge, North Sydney along to Bradley’s Head and down into Rose Bay.

6 The issues were amended as on 20 May 2005 and are as follows:

1. Non-compliance with maximum floor space ratio for mixed development under the provisions of Waverley Local Environmental Plan, 1996 .
Particulars

The site is within an area zoned Business Neighbourhood 3(c) and under Clause 27(3) of Waverley LEP, 1996 which permits a maximum FSR of 1:1 (total floor space of 370 sq m). The proposal has a total FSR of 1.50:1 including the basement and an FSR of 1.27:1 with the basement excluded. The departure in FSR is considered to be excessive and not supportable under SEPP 1 objection.

2. Non-compliance with maximum residential floor space ratio under the provisions of Waverley Local Environmental Plan, 1996.

Particulars

The maximum residential floor space ratio allowable under Clause 27(3) of Waverley LEP 1996 is 0.5:1 (total floor space of 185 sq m). The proposed residential floor space ratio is 0.88:1, which equates to 328 sq m. A departure of 76% is not supportable under SEPP 1 objection.

3. The proposed development is not compatible with the objectives of the adjoining Residential 2(a) zone.

Particulars

The subject site is adjoined by Residential 2(a) zone on the western and southern sides. Under Clause 32 of Waverley LEP, 1996 the proposed development must have regard to the objectives of the adjoining zone. The objective of the Residential 2(a) zone is to have low density development which is compatible with the character and scale of low density housing.

The Residential 2(a) zoning generally allows two storey developments with the FSR of the adjoining lots ranging between 0.51:1 to 0.72:1. The proposed development of three storeys with an FSR of 1.27:1 (excluding basement) is considered to be incompatible with the adjoining developments

4. Whether the proposed height of the development should be reduced, given that the proposed floor space ratio is excessive.

Particulars

The prescriptive standards for developments e.g. building height, FSR, setbacks etc. are interlinked and their compliance cannot be judged separately. The standards specify maximum and minimum limits, and compliance in one standard is not a justification for non-compliance in other standards. For the subject proposal, it is considered that the height of the proposed development should be reduced so that the proposed FSR is within or equal to the maximum permissible limit.

5. Whether the proposed increase in size of first floor terrace and additional second floor terraces will have unacceptable visual and acoustic impact on the adjoining properties located towards the western and southern sides.

6. Whether the proposed height of the development will obstruct harbour and city views from the properties located towards the east to an unacceptable level.

7. The proposal is not in the public interest having regard to submissions received.

8. The proposal has an unsatisfactory and unreasonable overshadowing impact on the existing building at 216 Military Road, Dover Heights.

7 Attending the on-site hearing for the respondent are:

• Mr S Brockwell, barrister
• Mr G Hartley, solicitor
• Mr H Zouroudis, solicitor for the owners of No. 157-159A Military Road, Dover Heights
• Ms M Cohen of unit 4 No. 155 Military Road, Dover Heights.
• Mr M Cohen of unit 4 No. 155 Military Road, Dover Heights and
• Ms M Heffner of No. 216 Military Road, Dover Heights.

8 Attending the on-site hearing for the applicant are:

• Mr P Clay, barrister
• Mr J Farah, solicitor
• Mr R Fleming, town planner
• Mr I Lazar of 33 Bligh Street, Sydney
• Ms V Jegorova of 33 Bligh Street, Sydney
• Mr K Gow, 59-248 Miller Street, North Sydney and

9 Mr Fletcher had been agreed by the parties to be appointed by the Court to prepare the town planning report as in Exhibit 1.

10 The applicant sought to have further evidence produced by Mr Fleming who had prepared the State Environmental Planning Policy No. 1 objection in Exhibit B. Limited evidence was given by Mr Fleming.

11 In regard to the Heffner objection there are shadow impacts caused by the third storey at 9 am in midwinter on two bedroom windows and a bathroom window on the first floor of the house and the habitable room window on the ground floor. These shadows do not occur now. The shadows recede during the morning and would be gone by noon.

12 There would be some privacy impacts on the same windows from the southern maisonette’s living, dining and kitchen windows plus possibly to the Heffner’s kitchen window from the third storey bedroom balcony. These could be overcome on the visual privacy issues by frosting and fixing the lower window sashes or directional louvres.

13 In regard to the current objection from unit 4 Nos. 151-155 Military Road, the third storey would obstruct their harbour views to the extent of losing Cremorne Point and Bradley’s Head including the harbour between, but would retain views of the City, opera house and bridge.

14 In regard to the Melawani objection of unit 5 of Nos. 151-155 Military Road, they were likely to lose views from Bradley’s Head to perhaps half of the harbour bridge including the harbour between, according to Mr Fletcher.

15 In regard to the Giakopoulos objection at Nos. 157-159A Military Road, Mr Zouroudis, solicitor, represented them. The existing set of single storey shops is a potential development site in that 3(c) zone for up to three storey apartments. Mr Zouroudis says the third storey of the proposal would block the views they might get of the harbour in the future.

16 Mr Fletcher said the third storey of the development contributed to the floor space ratio (FSR) of the proposal. He had calculated a total of 1.45:1. That is almost 50% exceedance of the maximum permitted floor space ratio of 1:1 on the subject site as provided by statute in cl 27 of the Local Environmental Plan. Mr Fletcher said even if a third storey was deleted, the proposal would still be more than floor space ratio 1:1. In fact the existing building was only 12 sq m short of having the floor space ratio of 1:1.

17 Mr Fleming’s State Environmental Planning Policy No. 1 objection and the applicant’s submissions could be summarised in a simplified form as saying the subject site was capable of greater economic use under s 5 of the Environmental Planning and Assessment Act and the impacts on neighbours being minor and reasonable the proposal should be permitted.

18 Mr Fletcher said that there is some truth in the impacts in some cases being minor, but the proposal is massively over the permitted maximum floor space ratio. If it complied with the floor space ratio a design concept would have much more flexibility to minimise impacts on neighbours. This is the intention of the combination of the floor space ratio and height statutory maximums, and the design objectives of the 3(c) zone and the 2(a) zone, that were brought together by cl 32 of the local environmental plan where development in the 3(c) zone adjoins homes in the 2(a) zone.

19 Mr Fletcher said there was to be a transition in scale in those situations so the impacts of development from the commercial/retail uses would be reduced on the residential uses.

20 Mr Fletcher noted that loss of the drive through of the bottle shop was not an issue in this case, nor the resulting loss of on-site parking. A council report indicated a total of 10 spaces was needed. The lack of the issue was due, in his opinion, to the removal of the current noise nuisance caused by the drive through to No. 216. With the drive through gone the noise from cars entering and leaving was eliminated except for the use of the garage for residential purposes. He said also, the small size of the Business 3(c) zone in this location might have been considered to allow bottle shop customers to park in the street.

21 Mr Cohen made the point that there is a bus stop and the drive entry that prevented parking outside the site upon Military Road and no parking signs in Blake Street due to the narrow carriageway at the intersection of Blake Street and Military Road. He said people going to the shops had to park on his side of the street to get to the shops and the small number of spaces led to congestion. Customers parked on his apartment’s driveway and that of the house next door and on the footpath. Bollards had to be erected on the footpath to try to stop that practice. Without the drive through the bottle shop customers would add to that congestion.

22 Neither party cross-examined Mr Cohen’s evidence.

23 Overall I have come to the conclusion that the proposal is a design that seeks to maximise development well over the permitted maximum floor space ratio thereby creating collateral impacts. There is also an exceedance of the statutory height limit by only 100 mm. I agree with Mr Fletcher that the exceedance of the height limit is not of itself sufficient for refusal. It simply demonstrates the maximisation of the design.

24 Whilst it might be that some of the impacts of over-development are minor perhaps in regard to shadows upon No. 216 and the views from the Cohen’s apartment. But they are real impacts to the objectors who would have to suffer them. The other impacts of aural privacy and bulk and scale and view loss are more significant.

25 Being a transitional site there is a need for sensitivity in any design. The bottle shop drive through noise is obviously a concern to No. 216. Double glazing, shutters and air conditioning are already installed in No. 216 to minimise noise impact although the objector still complained about the intermittent noise from the external cold room equipment. In physical terms however, the existing building envelope and its location and floor space ratio of 1:1 fixed at the time of their approval have created a reasonable transitional bulk and scale and minimised most impact, between the zone 3(c) and zone 2(a). This development proposal has not.

26 The State Environmental Planning Policy No. 1 objection seeking to be approved on the basis of the exceedance of the floor space ratio is not soundly based and the proposal should be refused.

27 Mr Fletcher indicated that an alternative design that concentrated any third storey element either at the north eastern corner of the site or possibly increased floor space at the ground level may lead to a design that might be acceptable. However, such a design was not before the Court at this time nor before the Council. Therefore it cannot be considered.

28 The orders of the Court are:

1. The appeal is dismissed.
2. The exhibits are returned to the parties except Exhibits 1, 2, 3, A, C and D.

___________________
K G Hoffman
Commissioner of the Court

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