Platino Properties Pty Ltd v Willoughby City Council

[2013] NSWLEC 1066

Land and Environment Court

New South Wales

Medium Neutral Citation:

Platino Properties Pty Ltd v Willoughby City Council [2013] NSWLEC 1066

Hearing dates:

18 April 2013

Decision date:

19 April 2013

Before:

Tuor C

Decision:

1. The applicant is granted leave to amend the application and rely on amended plans subject to an order for costs under s97B of the Environmental Planning and Assessment Act 1979 in the agreed sum of $10,000.

2. The appeal is upheld.

3. The development application to demolish an existing house and construct a three storey mixed use development comprising eleven residential units, commercial space on the ground floor level and basement car parking/storage area, at 60 Penshurst Street, Willoughby, is approved subject to the conditions in Annexure A.

4. The exhibits, except Exhibits 3 and A may be returned.

Catchwords:

DEVELOPMENT APPLICATION: Mixed use development. Contentions raised by council resolved through amended plans. Objector concerns, including impact on residential amenity of overlooking and overshadowing.

Legislation Cited:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings
Willoughby Local Environmental Plan 1995

Category:

Principal judgment

Parties:

Platino Properties Pty Ltd (Applicant)

Willoughby City Council (Respondent)

Representation:

Counsel
Mr M Staunton (Applicant)

Mr A Pickles (Respondent)
Solicitors
King & Wood Mallesons (Respondent)

File Number(s):

10986 of 2012

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a development application to demolish an existing house and construct a three storey mixed use development comprising eleven residential units, commercial space on the ground floor level and basement car parking/storage area, at 60 Penshurst Street, Willoughby (site).

1. The issues in dispute between the Parties have been resolved through amended plans, conditions and the agreement of the experts. The remaining contentions relate to the concerns of the objectors.

Site and locality

1. The site is located on the eastern side of Penshurst Street, near its intersection with Mowbray Road. It has a frontage of 12.19m to Penshurst Street, a site area of 468.1sqm and is occupied by a single storey house.

1. To the south, the site adjoins a three storey building which has ground floor commercial and a four bedroom apartment above (58 Penshurst Street). A commercial building is to the north of the site (62 Penshurst Street). There are dwellings to the rear (west) of the site in Ward Street and a school on the opposite side of Penshurst Street.

1. The site is within the Penshurst Street and Mowbray Road commercial precinct which is characterised by two and three storey commercial buildings.

Planning controls

1. The site is zoned 3(e2) - Business Zone under cl 35 F of Willoughby Local Environmental Plan 1995 (WLEP). The development is permissible with consent. Relevant provisions in WLEP include aims and objectives (cl 2), amenity (cl 13D), objectives of floor space ratio (FSR) controls (cl 13E), business centres (cl 35), FSR (cl 36(1)(i) and (3)) and height (cl 37). The parties agree that the development complies with the requirements of WLEP.

1. Willoughby Development Control Plan (WDCP) provides provisions that are relevant to the proposed development, in particular Part D.3 - Multi unit housing and mixed use development and Part E - Specific controls for commercial development.

1. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) applies to the development. Under SEPP 65, the Residential Flat Design Code (RFDC) must be considered.

1. Draft Willoughby Local Environmental Plan (WLEP 2012) came into force on 31 January 2013. It includes a savings provision in cl 1.8A which provides:

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

Evidence

1. The Court visited the site and heard from objectors. Their main concerns were that the proposal was an over development of the site and did not comply with the planning controls. The objection from 58 Penshurst Street centred on the extent of overshadowing of an approved deck and the provision of an easement. The key concerns of the objectors from 1 and 3 Ward Street were the privacy impacts of the proposal, particularly overlooking of their rear open space. They were also concerned that the proposal would result in a demand for off street parking and increased traffic in Ward Street. They considered that the location of the site, near the intersection of Mowbray Road rendered it unsuitable for the density of development proposed due to the potential for traffic impacts.

1. Ms D Laidlaw and Dr D Dearing, for the applicant, and Mr A Tsembis and Ms G Morrish, for the council prepared a joint report on the planning and urban design issues associated with the proposal. These experts were available on site to answer questions but were not required for cross examination.

1. In their Joint report, the experts suggested changes to the development application to address the contentions raised by council and the concerns of the objectors. At the commencement of the hearing, the applicant sought and was granted leave, subject to an order for costs under s97B of the EPA Act, to amend the application and rely on the amended plans.

1. The changes include:

• the deletion of the light well on all floors and changes to the layout of units (203 and 303) to be studio units instead of one bedroom to improve the amenity of these units so that no bedrooms rely on a lightwell for light, air and outlook.
• change unit 204 from a two bedroom to a one bedroom unit and relocate it on both levels 2 and 3 to the east, generally where the light well was located to reduce the non compliance with the side setback control in WDCP and the building bulk adjacent to 58 Penshurst Street as well as the overshadowing impacts on its approved deck.
• introduction of measures such as planter box on level 2, privacy screens and horizontal louvres and planting of canopy trees to reduce overlooking of the properties to the rear and the south.
• the provision of a lift, two adaptable units and a disabled car space.

1. With these and other internal changes to the proposal, the experts agree that the contentions raised by council have been adequately addressed and that the impacts of the proposal are consistent with those envisaged by the existing planning controls and the desired future character sought by WLEP 2012.

Findings

1. I accept the evidence of the experts and am satisfied that the contentions in dispute between the Parties have been resolved. The proposal complies with the height and FSR controls in WLEP and meets the objectives for the plan and the 3(e2) Business Zone. While there are some non compliances with the controls in WDCP, these are generally minor and the experts agree that the objectives of these controls are met. The proposal also satisfies the requirements of SEPP 65 and the guidelines in the RFDC.

1. The objectors raised concerns about impacts on residential amenity, principally overlooking and overshadowing. The proposal generally complies with the setback controls in WDCP. The ground floor is setback a greater distance (4.6m where 3m is required) to provide an area of rear open space of sufficient size to plant canopy trees. There is a minor non compliance of the rear setback of the first and second floors (400mm), however, the experts agree that the proposal will be of acceptable height and bulk when viewed from the residential properties and will achieve acceptable privacy given the separation distances and the provision of a planter box on level 2 and a horizontal louvres on level 3.

1. With the changes to unit 204, the development complies with the southern side setback control in WDCP. The experts agree that the approved deck at 58 Penshurst Street would receive solar access in midwinter after about 12 pm to a proportion of its surface area. This is acceptable as the overshadowing results from a compliant height, bulk and setback. Furthermore, while the deck is the only open space provided for the unit at 58 Penshurst Street, it is off a bedroom rather than a living area.

1. Council did not raise concerns about increased demand for off street parking in Ward Street and considered the impacts on the road network from traffic generated by the development to be "minimal". The Roads and Maritime Service (RMS) has granted its concurrence to the application subject to conditions, which include that ingress and egress to the development is restricted to left turn in/left turn out from Penshurst Street.

1. The contentions raised by council in relation to sight lines, loading and parking (Contention 10) have been resolved through the provision of a mirror in the driveway, the provision of a disabled parking space and the imposition of a condition which reduces the size of the car stacker to accommodate eight car spaces. In the absence of expert evidence to the contrary, I accept that the proposal provides adequate on site parking and will not result in adverse traffic impacts that would not warrant refusal of the application.

1. The experts agree that although the site frontage does not comply with the minimum frontage of 27m in WDCP the applicant has demonstrated that amalgamation is not reasonably feasible given that the owner of 58 Penshurst Street was approached but has not agreed to amalgamation. The applicant has accepted the imposition of a condition which requires the creation of an easement in favour of 58 Penshurst Street, to use the driveway access, ramp and circulation aisle of the development, if both owners agree on appropriate terms. The experts consider that this meets the intent of the frontage control and the amalgamation of sites to achieve integrated development in the streetscape and minimise the number of driveway crossings and future access. It also enables the site, which is currently underdeveloped with a single house, to be redeveloped with a built form that is more consistent with the existing and desired future character of the area.

1. For the above reasons, I find that there are no reasons why the appeal should not be upheld and consent granted subject to the agreed conditions.

Orders

(1) 1. The applicant is granted leave to amend the application and rely on amended plans subject to an order for costs under s97B of the Environmental Planning and Assessment Act 1979 in the agreed sum of $10,000.

(2)   2. The appeal is upheld.

(3)   3. The development application to demolish an existing house and construct a three storey mixed use development comprising eleven residential units, commercial space on the ground floor level and basement car parking/storage area, at 60 Penshurst Street, Willoughby, is approved subject to the conditions in Annexure A.

(4)   4. The exhibits, except Exhibits 3 and A may be returned.

Annelise Tuor

Commissioner of the Court

ANNEXURE A

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Decision last updated: 19 April 2013