SB Two Pty Ltd v Leichhardt Council
[2014] NSWLEC 1265
•24 December 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: SB Two Pty Ltd v Leichhardt Council [2014] NSWLEC 1265 Hearing dates: 31 October 2014 Decision date: 24 December 2014 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is dismissed.
2. The development application (D/2014/250) for alterations and additions to the fourth (attic) level of the three approved dwellings at 27 Union Street, Balmain East, is refused.
3. The exhibits, except Exhibit 1, may be returned.
Catchwords: DEVELOPMENT APPLICATION: alterations and additions to upper level of approved development. Request under cl 4.6 of Leichhardt Local Environmental Plan 2013 to vary floor space ratio control. Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1 - Development Standards
Leichhardt Local Environmental Plan 2013Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827 Category: Principal judgment Parties: SB Two Pty Ltd (Applicant)
Leichhardt Council (Respondent)Representation: Ms S Duggan SC (Applicant)
Ms R McCulloch of Pikes & Verekers Lawyers (Respondent)
Mr V Conomos of Conomos Legal (Applicant)
File Number(s): 10507 of 2014
Judgment
This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Leichhardt Council (council) of a development application (D/2014/250) for alterations and additions to the fourth (attic) level of the three approved dwellings at 27 Union Street, Balmain East (site).
The key issue is whether the contravention of the floor space ratio (FSR) standard in cl 4.4 of Leichhardt Local Environmental Plan 2013 (the LEP) is acceptable and satisfies cl 4.6 of the LEP.
Site and locality
The site is located on the northern side of Hosking Street cul de sac. It is approximately 315.2sqm in area and has a frontage of 18.4m to Hosking Street. The site was developed with a part two/part three storey building which has been demolished.
Union Street steps run along the eastern boundary of the site and adjoin a townhouse development (11-15 Hoskins Street). To the west the site adjoins the lower end of Little Nicholson Street (pedestrian only) and there are two detached dwellings on the opposite side of this street (2 and 2A Little Nicholson Street). To the north, at the top of the steps, the site adjoins the council's Union Street carpark. A dwelling (1 Vernon Street) is opposite the carpark and the rear of the site.
To the south, on the opposite side of Hoskins Street, is a six storey residential flat building (16 Hoskins Street) and a part two/part three storey townhouse development (14 Hoskins Street).
The immediate locality has a mixture of residential, with one storey cottages, two to three storey terraces, older style residential flat building and townhouses.
Background and proposal
Council has approved previous applications for town house developments on the site. Most recently, a development application (D/2013/362) to construct three townhouses with basement car parking and strata subdivision was approved, subject to conditions, on 13 March 2014 (the Development Consent). The conditions included design amendments, which had the effect that the proposed 'attic' accommodation would be within a gabled roof form with a dormer window to each townhouse but no balcony.
The application before the Court was lodged on 28 May 2014. It seeks approval for alterations and additions to the fourth (attic) level of the three townhouses approved under the Development Consent. The application would alter the approved pitched roof form to provide accommodation which comprises a bedroom, ensuite, study and balcony. The form of the development would be within a flat roof, the western and eastern elevations are timber clad walls and glass louvres, the north elevation is set back 200mm from the wall below and is full height glass wall with glass louvres, and the southern elevation is a metal clad wall pitched at 51.5 degrees and dormers with French doors and balconies to each townhouse.
The appeal against the deemed refusal was lodged on 14 July 2014 and the Application was refused on 22 July 2014.
Planning controls
The site is located within the R1 - General Residential Zone under the LEP and the development is permissible with consent. Under cl 4.4 a maximum FSR of 0.7:1 is permissible. The Development Consent approved a gross floor area (GFA) of 345sqm and a FSR of 1.09:1 (as calculated under the LEP) and the Application would increase the GFA by 57sqm and result in an overall GFA of 402sqm and a FSR of 1.275:1. The applicant has submitted a request under cl 4.6 for an exemption to the FSR development standard.
The site is located within the Balmain Heritage Conservation Area (HCA) and within the vicinity of heritage items, which include the Union Street steps. The impact of the proposal on the heritage significance of the HCA and the heritage items must be considered under cl 5.10 of the LEP, but is not raised as an issue between the parties.
Leichhardt Development Control Plan 2013 (the DCP) is relevant. Under the DCP, the site is within the South Darling Street Sub Area of the Balmain East Distinctive Neighbourhood. The Residential Provisions in Section C3 apply including Site Layout and Building Design (C3.2), Views (C3.10) and Visual Privacy (C3.11).
Draft Leichhardt Local Environmental Plan 2013 - Amendment No 2 (Draft LEP) has been exhibited and is a relevant consideration. However, there are no changes that affect the issues in dispute between the parties.
Evidence
The Court visited the site and heard evidence from the adjoining owner of 1 Vernon Street whose main concerns were the height and bulk of the development and privacy impacts, particularly from the full height glass walls which would be in close proximity to and overlook his dining/informal living area. He was also concerned about the additional loss of views to Anzac Bridge and Camerons Cove.
The Court heard expert planning and urban design evidence form Mr B McDonald, for the council, and Mr J Mead and Mr R Dickson, for the applicant.
Request under cl 4.6 of the LEP to vary the floor space ratio standard in cl 4.4 of the LEP.
Mr Mead and Mr Dickson considered that the FSR standard has been effectively "abandoned" due to the approval of other developments by council since 2009 in the vicinity of the site. Mr Dickson, in the Joint Report, referred to four approvals with FSR ranging from 0.8:1 to 1.24:1. They also considered that as the Development Consent has approved a FSR of 1.09:1, which exceeds the maximum FSR, the standard is of little relevance to the proposal. Furthermore, the recent review of the FSR control in the LEP (the Review) recommended a FSR of 1.0:1 for sites less than 150sqm. If the additional FSR of the proposal is calculated based on site area of each proposed townhouse the variation is not a significant increase beyond what has already been approved above the recommendations of the Review.
Mr Mead prepared a written request as required by cl 4.6(3) of the LEP (the Request) seeking to justify the contravention of the FSR standard, principally on the basis that the proposal satisfied the objectives of the FSR. He noted that the properties surrounding the site and in the immediate locality do not contribute significantly to the significance of the HCA or to the Balmain East Distinctive neighbourhood. Consequently, the Desired Future Character (DFC) sought for the area is unlikely to be achieved in this location.
Furthermore, Mr Mead considered that the proposal does not materially change the bulk and form of the development compared to that approved under the Development Consent. The additional bulk and form of the proposal is consistent with that of other development in the area, which he estimates would have FSRs that exceed the standard. In his opinion, the additional bulk, form and scale would be compatible with the DFC and meet the objective in cl 4.4(1)(a)(i).
The proposal does not change the building footprint or landscaped area approved under the Development Consent. Mr Mead therefore concluded that it does not alter the balance between landscaped areas and built form and complies with the objective in cl 4.4(1)(a)(ii).
In Mr Mead's opinion, the bulk and form of the proposal will not result in adverse impacts when viewed from the public domain or nearby properties. In particular, the potential loss of views from 1 Vernon Street to the Anzac Bridge has been addressed by the proposed condition to chamfer the south east corner of the proposal. Consequently, the impacts of the bulk and scale are minimised and the proposal meets the objective in cl 4.4(1)(a)(iii).
Mr Dickson supported the conclusions in the Request. He considered that the proposed FSR and bulk of the development would be compatible with the existing context, which does not reflect the DFC for the area. In his opinion, the proposal would continue to read as a roof form and from Hoskins Street, the development would appear as two storeys over garages with an attic roof. The modifications to the northern façade would not be clearly visible from the street and, due to the change in level, the development would appear as two to two and half storeys from the rear and the Union Street walkway. He acknowledged that there would be an increase in the bulk of the development when viewed from 1 Vernon Street but considered this to be acceptable and that it would not result in unacceptable impacts such as view loss or privacy.
Mr McDonald did not agree that the FSR control had been "abandoned". He noted that applications for smaller sites may result in variations to the FSR control but this equates to only a small increase in floor area and building bulk. He stated that there had been over 100 development applications since 2009 in the area, but only about 20 had relied on an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) or a request under cl 4.6 of the LEP. Furthermore, the proposal exceeds the maximum FSRs recommended under the Review of FSR whether calculated on the basis of the combined site area (0.9:1) of based on the individual allotments (1.0:1).
In Mr McDonald's opinion, the Request was not well founded, principally because, the bulk, form and scale of the development is not compatible with the DFC nor have the impacts been minimised. The proposal therefore does not meet the objectives of the FSR standard in the LEP. In his opinion, the proposal is not an "attic" but rather an additional storey which adds considerable bulk to the building when compared to that approved under the Development Consent. Mr McDonald acknowledged that the area included developments which would exceed the FSR standard but that these were approved under previous planning controls. The wider context is generally low scale, low density development, which is sought by the DFC and the building envelope controls in the DCP. He considered that the additional bulk of the upper level would be visible from a number of vantage points and that the building would read as three storeys above garages from Hosking Street and the lower parts of Little Nicholson Street and Union Street. Development in Hosking Street on the north side is one storey above garage with a second storey setback and two storeys above the street on the south side. The residential flat building (16 Hosking Street) is not characteristic of the area.
In Mr McDonald's opinion, the impacts of the additional bulk have not been minimised. In particular, he considered that the additional bulk of changing the approved gable roof form to an additional storey in the north east corner would be in close proximity and clearly visible from the living area of 1 Vernon Street. This would result in unreasonable bulk and mutual privacy impacts. He acknowledged that the proposed condition to chamfer the south east corner would generally address view loss impacts to this property.
Submissions
Ms Duggan SC, for the applicant, submits that the FSR control in cl 4.4 of the LEP has been abandoned. She referred to the recommendations of the Review to increase the FSR controls and the Community Consultation FAQ prepared for the exhibition of the Review, which states that over 40% of development applications approved by council do not comply with FSR controls. In her submission, the existing character of the area is not consistent with what is sought for the area and the DFC will not be achieved. Nonetheless, the proposal is consistent with the objectives of the standard and the Court would be satisfied that the matters in cl 4.6(4) had been adequately addressed.
Ms McCulloch, for the council, submits that no analysis had been undertaken of development applications in the area or of the variations to the FSR control sufficient to conclude that the FSR standard had been abandoned. On the contrary, Mr McDonald's evidence was that the majority of applications approved in the area did not vary the FSR control. Ms McCulloch submits that while there are examples of uncharacteristic development, the DFC controls remain relevant and the bulk, form and scale of the development is not compatible. She submits that the matters in cl 4.6(4) have not been adequately addressed.
Findings
I accept Ms McCulloch's submissions, that the information before the Court is insufficient to conclude that the FSR standard in cl4.4 of the LEP has been abandoned. While there has been a review of the Standard which has been exhibited, this has not yet been incorporated into an amendment to the LEP. Without a proper analysis of the approvals within the area of the site and the nature of the variations to the control it is not appropriate to conclude that the control is abandoned. The FSR control remains relevant and development consent may only be granted to the application which contravenes the FSR standard if the requirements of cl 4.6 of the LEP are satisfied. Clause 4.6 is similar to an objection under SEPP 1 in that it is a precondition, which must be satisfied before the proposed development can be approved.
Clause 4.6 of the LEP relevantly provides:
4.6 Exceptions to development standards
(1) The objectives of this clause are as follows:
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard.
(4) Development consent must not be granted for development that contravenes a development standard unless:
(a) the consent authority is satisfied that:
(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
(b) the concurrence of the Director-General has been obtained.
(5) In deciding whether to grant concurrence, the Director-General must consider:
(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the development standard, and
(c) any other matters required to be taken into consideration by the Director-General before granting concurrence.
Clause 4.6(4)(a)(ii) requires satisfaction that the proposal is in the public interest because it is consistent with the objectives of the FSR standard before consent can be granted. The objectives of the FSR standard in cl 4.4 of the LEP are:
4.4 Floor space ratio
(1) The objectives of this clause are as follows:
(a) to ensure that residential accommodation:
(i) is compatible with the desired future character of the area in relation to building bulk, form and scale, and
(ii) provides a suitable balance between landscaped areas and the built form, and
(iii) minimises the impact of the bulk and scale of buildings,
(b) to ensure that non-residential development is compatible with the desired future character of the area in relation to building bulk, form and scale.
The parties disagree on whether the desired future character of the area is established by the Objectives and Controls for the Balmain East Distinctive Neighbourhood and the South of Darling Street Sub Area as described in Sections C2.2.2.2 and C2.2.2.2(c) of the DCP. They consequently disagree on whether the objective in cl 4.4(1)(a)(i) is met.
The experts agree that "the area to the east and south of the site, primarily in Hosking Street, has undergone such change that it is not representative of the small scale residential character" described for the area. However, they also agree that the "single dwellings to the west at Nos 2 and 2a Little Nicholson Street and the older forms of residential development to the north and north east in Little Nicholson Street, Union Street and Vernon Street are more consistent with the with the descriptions of existing and desired future character".
Consequently, the location of the site requires that it respond and mitigate between these mixed characters. The area is included in the Balmain East Distinctive Neighbourhood and the South of Darling Street Sub Area and the Objectives and Controls are relevant to the application, but must be considered in relation to the development that has occurred in Hosking Street, albeit, the residential flat building at 16 Hosking Street is uncharacteristic and is not a building to which the development should respond.
The controls for the Darling Street Sub Area envisage a 6m maximum building envelope (C5 of C2222(c)) which is explained in C3.2 and shown in Diagram C122 of the DCP. The development approved under the Development Consent, as conditioned, generally complied with the building envelope, whereas the proposal does not (Exhibit 11). I do not accept the evidence of Mr Mead and Mr Dickson that the proposal does not materially change the bulk and form of the Development Consent. I accept Mr McDonald's evidence that the proposal will add to the overall bulk of the building and change the form of the upper level from a gabled roof with dormer windows to an additional storey.
The development approved under the Development Consent appeared from Hosking Street and the lower parts of Little Nicholson Street and Union Street as two storeys above garages with a gabled roof. While the Development Consent exceeded the FSR control, the additional floor area was contained in a roof form and therefore did not significantly add to the overall bulk of the building, whereas the proposal does. The proposal has vertical walls to the north, east and west, which extend directly above the walls below. The materials and the 200mm setback of the glazed wall to the north will not prevent the upper level from appearing as an additional storey, rather than a roof. The use of metal roof cladding and the 51 degree angle of the southern wall may be a "roof" form but is uncharacteristic of the area and adds the bulk of a storey to the building.
The appearance of the upper level as a storey rather than a roof form may not, of itself, be unacceptable. However, other than 16 Hosking Street there is no building in the vicinity of the site which is four storeys. The development to the east of the site in Hosking Street is predominantly one storey above garages with a second storey setback to reduce the bulk. Within this context, I accept Mr McDonald's evidence that the bulk, form and scale of the proposal is not compatible with the desired future character of the area and does not meet the objective of cl 4.4(1)(a)(i) of the LEP.
The additional bulk and change to the roof form will also impact on 1 Vernon Street, particularly the north east corner of the proposal, which will be in close proximity to the living areas of 1 Vernon Street. The distance between the south west corner of 1 Vernon Street and the north east corner of the proposal is 5m and the images in Exhibit 7 illustrate the impact of the additional bulk, which is beyond that envisaged by the building envelope. The northern wall is full height glazing, which would result in mutual privacy impacts for the proposal and 1 Vernon Street. While these could be addressed by privacy measures, the proposal does not minimise the impacts of bulk and scale and therefore does not meet the Objective in cl 4.4(1)(a)(iii).
Clause 4.6(4)(a)(i) also requires satisfaction that the Request has adequately addressed the matters required to be demonstrated by subclause (3), which include that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)).
Clause 4.6(3)(a) uses the same language as SEPP 1. Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 deals with the requirements to uphold an objection under SEPP 1. At [42] to [43], His Honour discusses ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states:
42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard...
43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).
The principles in Wehbe are relevant to establish whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as required by cl 4.6(3)(a), namely whether, despite the non compliance, the proposal meets the objectives of the standard. Given that I have found that the development does not meet the objectives of the FSR standard, it therefore follows that I cannot be satisfied, as required by cl 4.6(4)(a)(i) of the LEP, that the Applicant's written request has adequately demonstrated the matters in cl 4.6(3)(a).
For the above reasons, I am not satisfied that the contravention of the FSR standard in cl 4.4 of the LEP is justified and the application must therefore fail.
Orders
(1) The appeal is dismissed.
(2) The development application (D/2014/250) for alterations and additions to the fourth (attic) level of the three approved dwellings at 27 Union Street, Balmain East, is refused.
(3) The exhibits, except Exhibit 1, may be returned.
Annelise Tuor
Commissioner of the Court
Decision last updated: 24 December 2014
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