Shaw v Kogarah Municipal Council
[2005] NSWLEC 44
•01/21/2005
Land and Environment Court
of New South Wales
CITATION: Shaw v Kogarah Municipal Council [2005] NSWLEC 44
PARTIES: APPLICANT
Naylor ShawRESPONDENT
Kogarah Municipal CouncilFILE NUMBER(S): 10680 of 2004
CORAM: Hoffman C
KEY ISSUES: Development Application :- Demolition of three existing buildings - erection of five storey block of flats above basement carpark - floor space ratio - streetscape - solar access - privacy - building form and articulation - precedent on density
LEGISLATION CITED: Kogarah Local Environmental Plan 1998
Development Control Plan No. 5
State Environmental Planning Policy No. 65DATES OF HEARING: 14/12/2004 EX TEMPORE JUDGMENT DATE: 01/21/2005
LEGAL REPRESENTATIVES: APPLICANT
Mr A Pickles, barrister
SOLICITORS
Abbott ToutRESPONDENT
Ms C Schofield, solicitor
SOLICITORS
Pike Pike & Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
10680 of 2004 Naylor Shaw v21 January 2005
JUDGMENT
Kogarah Municipal Council
1 This was a class 1 appeal No. 10680/04 between Naylor Shaw Associates and Kogarah Municipal Council in regard to the refusal of application No. 783/03 for the demolition of three existing dwellings and the erection of a five storey block of flats above a basement carpark. The development comprised eighteen units of one and two bedroom configuration with twenty-one car spaces, including three visitors’ spaces and including three spaces usable by cars with disabled persons.
2 The site is 32-36 Premier Street, Kogarah, having a frontage of 21.3 m to both Premier Street and Bank Lane and a depth of 42.6 m giving a site area of 909 sq m.
3 The design was in two blocks, the Premier Street block being five storeys and the Bank Lane block on the east side being four storeys with a rooftop landscaped terrace for the use of all the residents. There was a landscaped courtyard between the blocks and it formed an entry courtyard as the lobby ran through from Premier Street to the courtyard, and the lift and stair tower were in the courtyard with bridges across to the apartment lobbies on each floor. The drive entry was on the north side boundary off Bank Lane.
4 Beside it was the entry drive and some ground level parking of another five storey block of flats at 26-30 Premier Street. On the south of the site was another five storey block of flats at 38-40 Premier Street. Opposite the site on the west side of Premier Street was the very large, modern, curtain walled St George Bank head office. It has a small setback and landscaping to the street. Behind the site on the east of Bank Lane was the rear of residential flats that ran through to Gladstone Street.
5 The Issues in the appeal were:
Particulars
1. The proposal is not of an appropriate density for the context of the site.
(a) The proposal significantly breaches the 1.6:1 density control contained in ch 5 of the Kogarah Development Control Plan 5 Kogarah Town Centre (“DCP 5”) with a proposed density of 2.03:1.
(c) The significant breach of the density control contained within Development Control Plan 5 is in contravention of the Design Principle 4 contained within State Environmental Planning Policy 65 - Design Quality of Residential Flat Development . (“SEPP 65”).(b) The proposal is inconsistent with the density objectives contained within ch 5 of Development Control Plan 5.
- Context and Scale
- (2) The design of the proposal does not respond appropriately to its context as required by Design Principles 1 and 2 of SEPP 65 and the building height and articulation controls of ch 5 of Development Control Plan 5.
Particulars
- (a) Inadequate separation is provided between the upper levels of the development and adjoining development to the north and south failing to ensure the continuation of the sense of separation between developments in the Premier Street streetscape;
Building Form and Articulation
Particulars(3) The proposal does not present as an appropriate built form within the context of the streetscapes of Premier Street and Bank Lane.
- (a) The facade to Premier Street is not harmonious and well balanced as required by the Facade Composition Requirements of cl 6 of Development Control Plan 5 as it lacks symmetry of design in the location and positioning of facade elements due to the projection of bedroom 1 of units 6 and 10 into the balcony area.
(4) The design of the proposed units does not afford an appropriate level of amenity to future residents.
- Particulars
- (a) The development is poorly designed with regard to solar access for the living/lounge rooms of the following units contrary to the requirement of cl 6(10) of the Kogarah Local Environmental Plan 1998 (“LEP 1998”) and Design Principles 5 and 7 of SEPP 65 relating to resources, energy and water efficiency and amenity. Further, the design approach is inconsistent with the site configuration - orientation and building amenity - daylight access, better design practice criterion and rules of thumb contained in the Residential Flat Design Code .
- (i) Units 13 and 14. If the floors were switched with the living area at the upper level a better level of solar access would be achieved;
(b) The development is poorly designed with regard to solar access for the balconies of the living area of the following units contrary to the requirements of cl 16 of LEP 1998 and Design Principles 5 and 7 relating to resources, energy and water efficiency and amenity of SEPP 6. Further, the design approach is inconsistent with the site configuration and orientation, better design and practice criterion contained within the Residential Flat Design Code:
- (i) Units 13 and 14. They receive only a small amount of direct solar access (to well below 50% of the area) at 3 pm only in mid-winter between 9 am and 3 pm, this could be improved were the living and bedroom levels of the units swapped;
6 The Court heard the respondent’s evidence from:
- Mr Z Svetkovski, resident and objector for unit 13 at 26-30 Premier Street, Kogarah, and
- Ms K Gordon, consultant town planner. The applicant’s evidence was heard from Mr M Harrison, consultant architect and town planner.
7 The units were all oriented in an east-west direction and ran through the building so that there was good cross-ventilation potential. Some units were split-level with the living room on one floor and the bedrooms on the next floor.
8 The site was located in the Kogarah Town Centre. Premier Street is the boundary between commercial zoning on the west and residential zoning on the east. The Town Centre plan requires a 3 m setback for buildings on the Premier Street boundary and a 3 m setback to Bank Lane with a 1 m dedication for a future footpath in the lane. The proposal does those things. There is a narrow landscape strip along the Premier Street frontage similar to the frontages on the other new apartment blocks. The setback to the facade is 3 m but courtyards of the ground floor units project into the landscaping. The height limit is 15 m on the Premier Street half of the site and 12 m on the Bank Lane half.
9 In the Premier Street precinct there are heritage listed terraces at the north end of the street beyond Nos. 22 - 24 and Nos. 26 - 30, two other large and recent apartment buildings. The proposal conforms with the uses sought for the eastern side of Premier Street.
10 Numbers 22 - 24 Premier Street was also a five storey recently built apartment building and it was put by the respondent and Ms Gordon as being better street facade and building massing articulation than any of the other recent buildings in the street and better than the proposal. Apart from its more elaborate detailing, Nos. 22 - 24 had a 3 m setback on the side boundaries on the third, fourth and fifth storeys. The front facade stepped back from the street on its upper storeys also, as did the subject proposal, only it could be seen that Nos. 22 - 24 probably had greater step backs from the street on its other storeys than the proposal did. This gave a more articulated massing than the other buildings, including that pedestrians could see a substantial gap to the sky between Nos. 22 - 24 and Nos. 26 - 30 Premier Street.
11 The latter building had been built side boundary to side boundary across the whole frontage five storeys high. The 3 m side setback at Nos. 22 - 24 enabled it to have some bay windows along the side elevations whereas Nos. 26 - 30 had blank walls.
12 The proposal was also built boundary to boundary on the sides but had introduced, in recent amendments following discussions with Ms Gordon, a recess on the fourth and fifth floors next to the side boundaries on the front elevation. The recess was 2 m wide and 5 m deep. The applicant said that the pedestrians in the street would not see the end of the 5 m deep recess even from the St George Bank side of the street due to the solid balustrade of the terrace at the fourth storey.
13 Ms Gordon agreed with this opinion. As a result, the gap would look like a gap between the proposal and Nos. 26 - 30 that would run right through the building. There would be a similar gap between the proposal and Nos. 38 - 40. The latter gap would appear a little larger due to Nos. 38-40 having a 1 m setback from its own side boundary but with a 4-5 storey high blank wall at that location.
14 Ms Gordon, who had previous drawings of the proposal where this gap did not exist, held the opinion that units 13 and 16 on the north and the south of the top floor should be deleted. After a conference with Mr Harrison and the two giving concurrent evidence in Court, Ms Gordon decided the revised drawing would achieve sufficient articulation in the Premier Street streetscape, and the deletion of units 13 and 16 was no longer needed on aesthetic or streetscape grounds.
15 Part of her original opinion to delete units 13 and 16 was related to the floor space ratio issue. The proposal was 2.03:1 when the Town Centre Development Control Plan said 1.6: 1. She agreed even by deleting units 13 and 16 the floor space ratio was still exceeded. As proposed it was about 490 sq m once the floor space of the recesses was taken out. This 490 sq m was equivalent to about five additional units over what might be expected in a floor space ratio of 1.6: 1.
16 It was put by the applicant and Mr Harrison that the floor space ratio control of 1.6:1 was very low when the council’s building heights of 15 m and 12 m were taken into account. Ms Gordon said the envelope controls could be large to give flexibility for difficult sites. It would only be a problem if the allowed floor space ratio was so big the resulting buildings could not fit into the height and envelope controls. In this case it meant greater articulation, or larger courtyard spaces or larger setbacks could be achieved.
17 Ms Gordon agreed in the joint report in Exhibit C that the revised plans were such that the floor space ratio issue need not be a reason for refusal.
18 The applicant and Mr Harrison put that this must be so, because the council had previously had a floor space ratio of 2:1 for Premier Street and that was the control plan when the other new apartment buildings were approved at between 2.36:1 and 2.10:1 floor space ratios. The council had changed the floor space ratio to 1.6:1 without giving reasons for the change and without changing the rest of the Development Control Plan to suit. It was said, the proposal, in effect, was infill development due to the other apartment buildings being substantially larger than was now permissible.
19 The respondent pointed to the Kogarah Town Centre Development Control Plan 5 p 4/42 showing a sketch of terraces and row houses in Premier Street and in the desired future character statement that development adjacent heritage items must be sympathetic. The heritage items were two storey terrace houses and it was readily apparent the huge apartment buildings constructed to date were a total change in scale to them. However they were confined to the northern end of the street.
20 The result of the council reducing the floor space ratio to 1.6:1 meant that greater modulation of the building shapes could be achieved to obtain a less massive outcome. Otherwise, the respondent said, there would be a continuous wall of buildings on the eastern side of Premier Street when all sites were re-built. This site and two other remaining redevelopment sites in Premier Street could achieve the difference, in the submission of the respondent.
21 In this case the council pressed the deletion of units 13 and 16 and the introduction of side windows to units 14 and 15. The development would still be about 300 sq m larger than the floor space ratio permitted but the reduction of mass at the fourth and fifth storey would greatly improve the streetscape. The council’s submission was that this was a reasonable concession and would achieve the better planning outcome than currently proposed.
22 The draft conditions with the s 94 contributions had been calculated at sixteen units, not eighteen units, the council said. However, the calculations for eighteen units were available in the documents should the Court require them.
23 In regard to Mr Svetkovski’s concerns about solar access, privacy and visual amenity due to the garbage bin enclosure of the proposal, Messrs Gordon and Harrison had agreed as follows.
24 Mr Svetkovski thought the sun at 9 am in winter was behind the rear four storey component of the proposal facing Bank Lane. Mr Svetkovski’s unit faced Bank Lane but along the length of his own development’s courtyard there was a northern wing of his own block of apartments on the north side of the courtyard. Looking at the shadow diagram, the experts agreed for his unit to be shaded at 9 am by the proposal the sun would have to rise in the south-east in winter. In fact the sun rose in the north-east in winter and, seeing the shadow diagrams in Exhibit A, it was the northern wing of his own development that shaded Mr Svetkovski’s unit at 9 am. The proposal could not reduce his solar access being to the south of his unit.
25 Added to this Mr Svetkovski’s unit was adjacent to the central courtyard of the proposal so there was no immediately adjoining bulk of the proposal.
26 Another concern was privacy and he felt his living and bedroom windows would be overlooked from the rooftop recreation garden on top of the Bank Lane component of the proposal. The experts agreed the privacy screen to be erected on the north and south sides of the garden would prevent overlooking. The windows to the units on the north wall of the Bank Lane building were at a very oblique angle to Mr Svetkovski’s so overlooking from them would be unlikely, and in any case the distance of separation varied between 9-20 m. This met the AMCORD minimum for privacy separation in medium density development.
27 In regard to the garbage room the applicant had put a roof on the garbage enclosure and doors to its entries and the landscaping in the central courtyard would suitably screen and soften its appearance. Trees were to be planted between the Svetkovskis and the garbage room, they would eventually block any view of it. Being an enclosed garbage room and the Svetkovskis being three floors above should prevent odours being a problem.
28 The final concern was a glimpse of Botany Bay seen from the window of the children’s bedroom. The windows of the bedroom were heavily curtained so the awareness of the glimpse was not obvious. It was true that the top floor of the Bank Lane building of the proposal would block out the glimpse. Mr Svetkovski sought the removal of units 17 and 18, being the top floor of that building. The glimpse of Botany Bay was at an oblique angle from the window and was a very small component of the aspect from the bedroom. One could not give the loss of it great weight as a significant impact on the amenity of the Svetkovski unit.
29 In coming to conclusions on the proposal the Court noted that Ms Gordon had observed that the provision of a full length setback on the side boundaries by deleting units 13 and 16 would only give greater exposure of the blank side walls of Nos. 26 - 30 and Nos. 38 - 40 Premier Street. That was, she said undesirable in the streetscape, and, the modified units (putting the living rooms on the top floor) 13 and 16 were a better outcome than either the original proposal or the deletion of units 13 and 16.
30 The changes to units 6 and 10 also improved the street elevation to Ms Gordon’s satisfaction in respect of issue 3.
31 The switching of the living rooms of units 13, 14, 15 and 16 so they were all on the top floor gave them better solar access and improved the natHERS index of the building so that 72% of the units achieved three hours of direct sunlight in mid-winter. This was very satisfactory in Ms Gordon’s view.
32 The concern of bedrooms of units 5 and 6 being next to the living rooms of other units was said to be resolved by masonry walls between of sufficient density to give adequate acoustic insulation. With these changes all the issues were dealt with satisfactorily as far as the experts were concerned.
33 The submission put by the respondent was the exceedance of the floor space ratio, as a matter of fact, that could create a precedent for other developments in the urban centre of Kogarah. The purpose of the floor space ratio control remains the same in Development Control Plan 5 whether it is a 3.5:1 floor space ratio in Montgomery Street or a 1:1 floor space ratio in Gladstone Street.
34 The objective is to create consistency and certainty and ensures developments are appropriately articulated and modulated.
35 According to Ms Gordon, the council’s expert, the proposal as modified had appropriate articulation and modulation at a floor space ratio of 2:1. The point made in submissions was that greater articulation and modulation could be achieved if units 13 and 16 were deleted but it would still be a floor space ratio of about 1.8:1, not the 1.6:1 set down for Premier Street.
36 It was put to the Court that the council had consistently applied the reduced floor space ratio of 1.6:1 since council adopted it.
37 In the face of the adjacent and adjoining new apartment complexes on Premier Street, one has to appreciate the future character that the council wanted under the previous higher floor space ratio had been established. The huge St George Bank headquarters building on the west side of Premier Street and the large apartments on the east side have seen to that.
38 Given Ms Gordon’s agreement that the proposal now achieves satisfactory streetscape and the Bank Lane building is four storeys to match the rear of the other large apartment buildings, it seems to the Court that the proposal is reasonable at a floor space ratio of 2:1 when its neighbours are up to a floor space ratio of 2.4:1. It is reasonable to allow the proposal in this case due to its context and that should not create a precedent for other areas of Kogarah if a different context occurs.
39 Therefore, the orders of the Court are:
1. The appeal is upheld.
2. Development consent is granted for the demolition of 3 existing houses at Nos. 32-36 Premier Street, Kogarah, and the erection of an apartment block as shown in Drwg, Nos. DA0313/00B, /01B, /02C, /03C, /04C, /05C, /06C, /08C, /09B by Naylor Shaw Associates and Zenith Landscapes Drwg. Nos. 03-1622A, ½ and 2/2, and drainage plans by John Romanos & Assoc. Nos. 633-S1/3B, -S2/3B and –S3/3B with the latter 3 drawings amended so that the detention tank and associated works are NOT beneath the Bank Lane dedication to the council, all subject to the conditions contained in Annexure A hereto.
3. The respondent to forward to the Court within 7 days of this decision, the revised s.94 contributions.
4. The exhibits are returned to the parties except Exhibits A, B, C, D, E and 2, 5, 6, 7 and 8.
- ___________________
K G Hoffman
Commissioner of the Court
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