OandE Developments Pty Ltd v Burwood Council

[2022] NSWLEC 1108

Land and Environment Court

New South Wales

Medium Neutral Citation:

OandE Developments Pty Ltd v Burwood Council [2022] NSWLEC 1108

Hearing dates:

22-23 February 2022

Date of orders:

03 March 2022

Decision date:

03 March 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Court orders that:

1) The appeal is dismissed.

2) Modification Application No. 2018/48/03 to modify the approved development at 319-321 Liverpool Road, Strathfield, is refused.

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

Catchwords:

MODIFICATION APPLICATION – whether the proposal is substantially the same as the development for which consent was originally granted – amenity impact on the adjoining low density residential zone -

Legislation Cited:

Burwood Local Environmental Plan 2012, cll 4.3, 4.4, 4.4A
Environmental Planning and Assessment Act 1979,
ss 4.56, 8.9

Environmental Planning and Assessment Regulation 2000, cl 121B
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development,

cll 4, 28

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85
Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38

Ghazi Al Ali Architect Pty Ltd v Burwood Council [2019] NSWLEC 1488
Moto Projects (No 2) Pty Ltd V North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280

Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115

Texts Cited:

Burwood Development Control Plan 2012

Department of Planning and Environment, Apartment Design Guide, July 2015

Category:

Principal judgment

Parties:

OandE Developments Pty Ltd (Applicant)
Burwood Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
T To (Respondent)

Solicitors:
Mills Oakley (Applicant)
Matthews Folbigg (Respondent)

File Number(s):

2021/214284

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No. 2018/48/03 to modify the approved development (Development Consent No. 048/2018) including increasing the approved building envelope (the proposal), at 319-321 Liverpool Road, Strathfield (the site), by Burwood Council (the Council).

2. The appeal was not subject to conciliation.

3. The approved development is the original development consent granted by the Court on 22 November 2019 (Ghazi Al Ali Architect Pty Ltd v Burwood Council [2019] NSWLEC 1488) (Ex 2, tab 1), as modified by the Council’s approval of a modification application on 12 August 2020 (Ex 2, tab 2).

The application is amended

4. The Applicant, by Notice of Motion, sought to amend the application to rely on amended architectural plans (Ex B) and other documents. The Council did not object to leave being granted to the Applicant to amend the application and agreed under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000 to the amendment of the application. Leave was granted for the applicant to amend the application and the Applicant was directed to lodge the amended application on the NSW planning portal and file evidence of the lodging of the application on the NSW planning portal.

5. The Applicant filed evidence of the lodging of the amended application on the NSW planning portal following the hearing.

Issues

6. The parties agreed that the Council’s contentions can be categorised as follows:

• The proposal does not satisfy the “substantially the same development test” jurisdictional test under s 4.56 of the EPA Act;

• The “infill” of the 6^th storey is contrary to the objectives for the building design at section 3.2.1 of the Burwood Development Control Plan 2012 (DCP 2012);

• The projection of the lift overrun and the stair over the 6^th storey to provide roof access to the communal open space on the roof does not integrate the services into the roof form and results in a building of excessive height;

• The third storey addition over the approved development in the northern portion of the site, adjacent to 41 Willee Street and with a 1m setback to the shared boundary, unreasonably impacts on the amenity of 41 Willie Street;

• The proposal has a parking shortfall of 5 residential car parking spaces. The Applicant proposes to use two car parking spaces for the provision of car share spaces, resulting in a shortfall of 7 residential car parking spaces. The Applicant has an agreement with GoGet for car share services (Ex D). The Council raised a number of issues in relation to the car share proposal.

7. The Council does not raise any issues with the remainder of the proposal, including the deletion of the commercial lift core.

The site and its context

8. The site is on the north-western side of Liverpool Street, on the corner of Willee Street. The approved development is currently under construction.

9. The site is irregular in shape and has an area of 835m².

10. The adjoining property to the north of the site, 41 Willee Street, is a former dwelling currently used as a childcare centre.

The approved development and the proposal

11. The approved development is a part five and part six storey mixed use development over two storeys of basement parking. The original development consent has been modified to create an opening in the basement carpark to access the adjoining property to the south-west and relocate two commercial car parking spaces into the adjoining basement.

12. The adjoining development to the south-west is a six storey boarding house currently under construction. The boarding house was approved after the original development consent was granted.

13. The approved development has a floor space ratio (FSR) of 2.065:1 and consists of two commercial units and 17 residential units. The proposal has a FSR of 2.44:1 and consists of two commercial units and 19 residential units. The residential component of the proposal has a FSR of 2.21:1, according to the Applicant.

14. The principal changes proposed to the approved development are as follows:

• Delete the commercial lift between basement levels and the ground floor.

• Enlarge Level 02 (third storey) to the north over the approved development on the level below, to change Level 02 from 3 x two bed units and 1 x one bed unit to 2 x three bed units, 1 x two bed unit and 1 x 1 bed unit.

• The enlargement of Level 02 results in the northern parapet of the approved development, with a 1m setback from the shared boundary of 41 Willee Street, being raised from RL 46.8 to RL 49.9.

• Enlarge Level 04 (fifth storey) in the north-western corner to infill part of the balcony in order to convert the approved one bed unit (unit 403) to a two bed unit.

• Change Level 05 (sixth storey) from an approved two bed unit and communal open space to 2 x three bed units and 1 x one bed unit.

• Relocate the communal open space to Level 06 (rooftop) and extend the stair access (RL 61.4) and lift overrun (RL 62.8) for access to the communal open space. The communal open space is surrounded by a planter 1.2m high and non-trafficable roof area around the planter. The communal open space area includes a pergola (RL 61.6).

Planning framework

15. The application is made under s 4.56 of the EPA Act. A consent authority may, on application being made by the Applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified, at s 4.56(1)(a).

16. The site is zoned B2 Local Centre under the Burwood Local Environmental Plan 2012 (LEP 2012). The objectives of the B2 zone are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

17. The site is adjacent to the R2 Low density residential zone to the north and west (Land Zoning Map – Sheet LZN_002 of LEP 2012).

18. The height of buildings development standard for the site is 20m (cl 4.3 and Height of Buildings Map – Sheet HOB_002 of LEP 2012).

19. The FSR development standard for the site is 2.5:1 (cl 4.4 and Floor Space Ratio Map - Sheet FSR_002 of LEP 2012). The site is within an area identified on the map as Area 5. Clause 4.4A(3)(e) is in the following terms:

4.4A Exceptions to floor space ratio

(1) The objectives of this clause are as follows—

(a) to limit the density of residential development in certain business zones to ensure that it does not dominate non-residential development in those zones…

(3) Despite clause 4.4, the ratio of the gross floor area of any part of a building used for the purpose of residential accommodation to the site area must not exceed…

(e) 2.2:1—if the building is on land in Area 5

20. Section 3 of DCP 2012 applies to development in the Enfield Local Centre zoned B2 Local Centre, at section 3.1. The objectives for building design, at section 3.2.1, are:

“To ensure that new buildings:

Represent architectural and urban design excellence.

Provide cohesive and visually interesting building appearance.

Respond to surrounding notable buildings and enhances the streetscape.

Integrate roof design with the building character and enhances the skyline.

Encourage rooftop gardens and planting on structures that enhance the quality and amenity of open space.”

21. The relevant provisions for building design, at section 3.2.1, are:

“P1 Architectural design excellence is to be achieved in the following ways:

The form and external appearance of any development should significantly improve the quality and amenity of the public domain.

Cohesive design and visual interest should be provided by articulation, modulation and fenestration as well as textures, materials and colours.

The development should respond positively to its context, environment and function…

P8 New developments on corner sites should orient to both street frontages. Also they should accentuate the corner’s unique location with architectural features that actively engage the public realm and create a visual presence at the corner, such as:

Chamfered or rounded corners

Different material and colours

Recessed balconies or windows…

P21 In transitional areas (town centres to residential precincts), podium elements should reflect the smaller modulation of the residential buildings in their façade design…

P29 Variety of architectural modulation and rhythm is encouraged to enhance the visual interest of the façade. Vertical articulation is preferred to break the façade into smaller elements…

P33 Roof designs are to be integrated into the overall architectural character of the building and enhance the skyline of the centre or corridor

P34 Buildings are to have recognisable roof termination or capping distinguishable from the public domain…

P37 The visual impact of service elements must be minimised by integrating them into the roof design and concealing them from view. These elements include lift over-runs, service plant rooms, vent stacks, telecommunication infrastructures, gutters and downpipes.

P38 Development must be designed with regard to how it is observed from the street and from adjacent development. Opportunities for sculptural expression to create a varied skyline must be considered.”

22. The relevant objectives and provisions for the Enfield Local Centre, at section 3.3.4.2 of DCP 2012 are:

“Desired Future Character

The B2 Local Centre zone and applicable developments standards will increase the floor space capacity overall while the maximum Residential FSR control will limit the residential floor space within shop top housing to about 88% of that potentially available on a development site.

In this context, redevelopment within the three areas that make up the Enfield Local Centre is likely to comprise new infill floor space or new construction that optimises provision of shop top housing where residents can take advantage of good public transport access and local services.

The land on the northern side of Liverpool Road between Burwood Road and Quandong Avenue that includes the Royal Sheaf Hotel site, is subject to lower development standards of 11m maximum building height and 1.5:1 FSR, in recognition of the historical development controls and the acknowledged heritage quality of the Hotel building and the Conservation Areas to the north and east…

Podium Height

P1 Development built to the street along Georges River Road, Coronation Parade, Liverpool Road and Burwood Road must not have a podium height greater than 9m…

Side and Rear Setbacks

O2 To minimise the amenity impact of development on adjoining properties.”

23. The provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) apply to the proposal at cl 4(1)(a)(i). The relevant provisions of the Apartment Design Guide (ADG) are to be taken into consideration in determining a development application, at cl 28(2)(c) of SEPP 65.

24. The design guidance for visual privacy at 3F of the ADG includes the following:

“Apartment buildings should have an increased separation distance of 3m (in addition to the requirements set out in design criteria 1) when adjacent to a different zone that permits lower density residential development to provide for a transition in scale and increased landscaping (figure 3F.5).”

Expert evidence

25. The Applicant relied on the expert evidence of Philip North (planning and urban design) and Benny Chen (traffic).

26. The Council relied on the expert evidence of Gerard Turissi (planning), Karla Castellanos (urban design) and Roberto Di Federico (traffic).

27. The planning experts prepared a joint report (Ex 4). The urban design experts prepared a joint report (Ex 3). The traffic experts prepared a joint report and a supplementary joint report (Exs 5 and 7).

The merit contentions

The infill of the sixth storey

28. The proposal includes infilling the sixth storey between the approved development that forms the upper most level of the development (containing 1 x three bed unit), identified by the experts as the uppermost level of the “corner element”, and the sixth storey of the approved development of the adjoining property to the south-west. The infilling of the sixth storey removes the approved communal open space on this level and adds 1 x three bed unit and 1 x one bed unit. The proposal retains the “corner element” and the skillion roof over the corner element.

29. The Applicant submitted that infilling the sixth storey prevents competition between the new development adjoining the site which is six storeys, and the corner element. According to the Applicant’s submissions, increased height is only one way of accentuating the corner element, and it is distinguished as an element by other features. Furthermore, the corner is not an important corner that requires the form of the building to signal an urban destination.

30. The Council contends that infilling the sixth storey has two significant consequences; firstly, it creates a consistent street wall contrary to development controls which encourage a variety of architectural modulation and rhythm to enhance the visual interest of the façade, where vertical articulation is preferred to break the façade into smaller elements; and secondly, it diminishes the prominence of the corner element by matching the height of the corner element. For these reasons, the infilling of the sixth storey does not achieve the objectives for building design.

31. According to Mr North, a more consistent street wall in terms of height and consistent parapet lines, is a preferable architectural outcome. There is still an opportunity to achieve a varied skyline, in his view. The proposal adopts a matching regular gridded and neutral architectural composition which matches the levels below. It fills a “tooth gap” created by the approval of the adjoining boarding house. The proposal retains the six storey corner element with its more three dimensional architectural modelling and soaring skillion roof. By creating greater uniformity for the elements away from the corner, the corner element is emphasised. In his opinion, the corner element can be differentiated by means other than a height difference with the building envelope adjacent.

32. According to Ms Castellanos, the corner element creates a termination of the vista from surrounding viewing points in the public domain, and its effectiveness relies on it being distinguished from the remainder of the building envelope. A continuous wall of development would create a homogenous façade and dilute the expression of the corner element. The corner element is a vertical element. The development controls require differences and distinguishable forms, such as a recognisable roof termination or capping, to vary the skyline.

33. I accept the Applicant’s position and I am satisfied that the objectives for building design are achieved by the proposal to infill the sixth storey between the corner element and the boarding house on the adjoining property. The Liverpool Road elevation of the boarding house is six storeys from side boundary to side boundary. If the Council had wanted a variety in the heights of parapets along this portion of the Enmore Local Centre, the stepping in the heights of parapets should have been achieved across the group of properties that make up this portion of the Enmore Local Centre.

34. I accept Mr North’s evidence that the change in height between the approved six storey corner element on the site and the approved six storey boarding house is now a “gap”. I accept the Applicant’s evidence that the corner element remains sufficiently distinguished as a feature by the stepping forward in plan of the corner element, the change in materiality when compared to the rest of the Liverpool Road elevation and the skillion roof over the corner element.

The projection of the lift overrun and the stair above the sixth storey to provide roof access to the communal open space area

35. As a result of the infilling of the sixth storey, the proposal relocates the communal open space to the rooftop and extends the stair access (RL 61.4) and lift overrun (RL 62.8) to the roof for access to the communal open space. The communal open space is surrounded by a planter 1.2m high and non-trafficable roof area around the planter. The communal open space area includes a pergola (RL 61.6).

36. The highest point of the approved skillion roof over the corner element, at the north-eastern corner of the building envelope, is RL 60.71.

37. The Applicant submitted that there are development controls for gardens on roofs and access for residents to those gardens, as evidence that roof gardens above the height of buildings development standard are contemplated by the controls. The seventh storey elements of the building on the opposite corner can be seen from the public domain and there are seven storey developments in the vicinity of the site. The existing development in the vicinity of the site forms part of the context for determining the desired future character (Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115 at [63]). Furthermore, the elements on the rooftop will not be clearly visible from the public domain. The additional height of these elements above the skillion roof of the corner element does not offend the prominence of the corner element.

38. The Council contends that although communal open space on the rooftop is desirable, the issues in this case arise because of the manner in which it is to be achieved. The rooftop elements are not integrated into the overall design, they are instead prominent, and they constitute visual clutter and are unsightly. The rooftop elements are visible from the public domain and when viewed from other surrounding development.

35. The urban design experts agreed that the rooftop elements will be visible when viewed from across the road from the intersection with Byer Street. In Mr North’s opinion, the rooftop elements will not overwhelm this view of the Liverpool Road elevation. The urban design experts agreed that the rooftop elements do not constitute a “roof feature”.

36. In Ms Castellanos’ view, while it is desirable to have roof gardens, they should be located within the maximum building height development standard and integrated into the built form of the building envelope. The approved development has the vertical access to the communal open space on the roof integrated into the built form behind and deferential to the skillion roof. The proposed rooftop elements should be designed and integrated into a roof feature. One should not accept the accidental forms of rooftop services as a fait accompli but should instead have regard to the visual impact of plant rooms and services on the roofs of buildings. The surrounding urban density means that residents occupying nearby developments will have to look at these elements. The corner element will be viewed against the bulk of the rooftop elements behind the skillion roof. The development controls seek to integrate these elements into the built form and this should be achieved.

37. I accept the Council’s position and I am not satisfied that the objectives for building design are achieved by the form and height of the elements on the roof level. The rooftop elements are not integrated into the overall architectural character of the proposal and do not enhance the skyline. The visual impact of the lift overrun is not minimised, nor is it integrated into the roof design or concealed from view. The form and expression of the rooftop elements detract from the prominence of the skillion roof over the corner element when viewed from the public domain.

The third storey addition and its impact on 41 Willee Street

42. The Applicant’s submission is that the proposed third storey in the northern portion of the site, over the approved development on the second storey below and with a matching 1m setback to the shared boundary with 41 Willee Street, does not result in any visual privacy impacts on the adjoining childcare centre because there are highlight windows in the northern façade and the bedrooms in the north-western corner have only an oblique view of the adjoining property. The only amenity impact of the proposed third storey is the visibility of the building envelope. The transition from three storeys in the northern portion of the site, to two storeys with a pitched roof within the 8.5m height of buildings development standard of the adjoining R2 Low Density Residential zone, is appropriate. The three storey portion of the proposal maintains the rhythm of the adjoining R2 zone, because the position of the three storey built form on the site is adjacent to the existing and expected building footprint on the adjacent property. The height of buildings development standard for the site is 20m and the proposal, at the northern interface with the adjoining zone, is well below the maximum building height.

43. The Council contends that the third storey of the proposal has a significant amenity impact as a result of the increased bulk of the building envelope located close to the shared boundary with 41 Willee Street. The northern elevation of the proposal is overbearing.

44. Mr Turrisi is concerned that the proposal is of a scale and mass that does not achieve an appropriate zone transition and interface with 41 Willee Street.

45. The increase in the height of the northern parapet, from RL 46.8 to RL 49.9, over the existing ground level of approximately RL 39.5 (site survey Ex B), is an increase in the height of the parapet from 7.3m above existing ground level, to 10.4m. The northern elevation is 16.37m long (Site survey Ex B and approved Level 1 Plan Ex 2). The northern elevation has a setback from the shared boundary with 41 Willee Street of 1m for all three storeys. The northern elevation is unrelieved by any modulation or features. It has a few highlight windows.

46. I accept, broadly, the Applicant’s position that a third storey in the northern portion of the site, adjacent to the former dwelling at 41 Willee Street, is acceptable, for the reasons articulated by the Applicant. I am, however, not persuaded by the proposal. No effort has been made to articulate or minimise the imposing visual bulk of the unrelieved 10.4m high and 16.37m long brick wall positioned so close to the side boundary. Improved internal spatial planning of Unit 204 and the design of the three storey building form of the proposal could vastly improve the presentation to the neighbour and the adjoining R2 Low Density Residential zone. The proposal does not minimise the amenity impact of development on adjoining properties.

The jurisdictional contention that the proposal is not substantially the same development as the development the subject of the original consent

47. The comparison required under s 4.56(2)(a) of the EPA Act involves a comparative assessment, qualitative as well as quantitative, of the development as originally approved, and the proposal to modify the development (Moto Projects (No 2) Pty Ltd V North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [55], [56] and [58]). The test is that stated in the statutory provision that the modified development “is substantially the same development” as the originally approved development (Arrage v Inner West Council [2019] NSWLEC 85 [18]-[19]). The onus is on the Applicant to demonstrate that the modified development is substantially the same development as the consent (Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 at [47]).

48. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified, pursuant to s 4.56(2)(a) of the EPA Act, for the following reasons:

• The proposal maintains the fundamental built form of the original development for which consent was granted, and adds discrete form to the approved building envelope, by infilling the sixth storey and relocating the communal open space to the roof, and by adding a third storey to the approved two storey portion of the built form; and

• The proposal maintains the approved commercial and residential use but changes the quantity and/or mix of units on three of the six storeys.

Conclusion

49. Given my determinative findings on the proposed changes to the building envelope, there is no need to determine the issues raised by the Council concerning the Applicant’s proposal to provide two car share parking spaces in the basement.

Orders

50. The orders of the Court are:

1. The appeal is dismissed.

2. Modification Application No. 2018/48/03 to modify the approved development at 319-321 Liverpool Road, Strathfield, is refused.

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

____________

Susan O’Neill

Commissioner of the Court

**********

Decision last updated: 03 March 2022