Solitarii Developments Pty Limited v Waverley Council
[2006] NSWLEC 655
•16/10/2006
Land and Environment Court
of New South Wales
CITATION: Solitarii Developments Pty Limited v Waverley Council [2006] NSWLEC 655 PARTIES: APPLICANT:
Solitarii Developments Pty Limited
RESPONDENT:
Waverley CouncilFILE NUMBER(S): 10474 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Acoustic privacy
Public InterestLEGISLATION CITED: Waverley Local Environmental Plan 1996, (WLEP)
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP65)
Environmental Planning and Assessment Act 1979, ss 79C and 97DATES OF HEARING: 16/10/2006 EX TEMPORE JUDGMENT DATE: 10/16/2006 LEGAL REPRESENTATIVES: APPLICANT:
Mr P R Rigg, solicitor
SOLICITORS:
DeaconsRESPONDENT:
Mr S Patterson, solicitor
SOLICITORS:
Wilshire Webb
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
16 October 2006
10474 of 2006 - Solitarii Developments Pty Limited v Waverley Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Waverley Council (the council) of a development application to demolish the existing building, to construct a new mixed-use building with car parking and to strata subdivide at Lot 27, DP 5953 and Lot 1, DP 315776 being No 26 Hall Street, Bondi Beach.
2 The hearing was held on-site and in company with the parties I inspected the land.
3 I have concluded that the recommendations of Mr Chambers the Court-appointed town-planning expert should be further amended having regard to the submissions of the residents that attended the on-site hearing.
The land
4 The land is situated on the southern side of Hall Street between Jaques and Consett Avenues. The existing two-storey building has commercial uses at the ground floor level and commercial storage and a residential unit above. The rear portion of the land is an open car parking area with access from a driveway along the eastern side boundary. Westpac Bank occupies the ground floor commercial area.
5 The locality is characterised by a mixture of ground floor retail and office uses with first floor residential units of various architectural styles. Abutting to the east and located on the corner of Jaques Avenue is the Bondi Beach Post Office, which is a heritage-listed building. Abutting to the west is a three-storey commercial and residential building. The properties to the rear comprise single dwellings, one to the south west at No 15 Consett Avenue is another heritage listed building, and residential flat buildings.
Relevant planning controls
Waverley Local Environmental Plan 1996, (WLEP)
6 Under the provisions of the WLEP the land is zoned 3(a) Business General of and the proposal is permissible with consent.
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP65)
7 SEPP65 seeks to achieve ‘good design’ for residential flat buildings over a certain size. Some of the early sections:
- 3 Definitions
- (1) In this Policy:
- design quality principles means the design quality principles set out in Part 2.
design review panel means a panel constituted under Part 3.
master plan has the same meaning as in clause 92A of the Environmental Planning and Assessment Regulation 2000.
residential flat building means a building that comprises or includes:
(a) 3 or more storeys (not including levels below ground level provided for car parking or storage, or both, that protrude less than 1.2 metres above ground level), and
(b) 4 or more self-contained dwellings (whether or not the building includes uses for other purposes, such as shops),
- Note.
Class 1a and Class 1b buildings are commonly referred to as town houses or villas where the dwelling units are side by side, rather than on top of each other.
- residential flat development means development to which this Policy applies because of clause 4.
the Act means the Environmental Planning and Assessment Act 1979.
4 Application of Policy
- (1) This Policy applies to development being:
- (a) the erection of a new residential flat building, and
(b) the substantial redevelopment or the substantial refurbishment of an existing residential flat building, and
(c) the conversion of an existing building to a residential flat building.
- 5 Land to which this Policy applies
- This Policy applies to the whole of the State.
- In the event of an inconsistency between this Policy and another environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency.
7 Design quality principles
- The design quality principles for residential flat development are the principles set out in this Part.
- Good design is a creative process which, when applied to towns and cities, results in the development of great urban places: buildings, streets, squares and parks.
Good design is inextricably linked to its site and locality, responding to the landscape, existing built form, culture and attitudes. It provides sustainable living environments, both in private and public areas.
Good design serves the public interest and includes appropriate innovation to respond to technical, social, aesthetic, economic and environmental challenges.
The design quality principles do not generate design solutions, but provide a guide to achieving good design and the means of evaluating the merit of proposed solutions.
9 Principle 1: Context.
10 Principle 2: Scale.
11 Principle 3: Built form.
12 Principle 4: Density.
13 Principle 5: Resource, energy and water efficiency.
14 Principle 6: Landscape.
15 Principle 7: Amenity.
16 Principle 8: Safety and security.
18 Principle 10: Aesthetics.17 Principle 9: Social dimensions.
8 The relevant development control plans include:
· Bondi Beach Urban Design Development Control Plan, (UDDCP);
· Waverley Development Control Plan No 14 - Land Use and Transport, (DCP14).
9 Recent development applications include:
· L-81/1998 to replace an ATM within the existing bank building and provide wheelchair access direct to the ATM was approved on 25 September 1998.
· K-253/2000 for an internal refurbishment of the existing branch bank including the relocation of ATM machines and provision of handicapped access was approved on 30 May 2000.
· DA-708/2005 for new signage for the existing bank was approved on 20 February 2006.
The proposal and its history
10 Development application No 368/2005 was lodged with the respondent council on 24 June 2005 demolish the existing building to construct a new mixed-use building with car parking on the land and to strata subdivide.
11 Jackson Teece Architecture prepared the plans.
Notification
12 The application was notified to nearby owners and occupants for 14 days and the council received seven (7) submissions. The application was also advertised in the newspaper and a site notice was erected. The council received amended plans and information on 6 January 2006 and these were notified and advertised for 14 days and the council received four (4) submissions.
13 Issues raised in the submissions included:
· not in accordance with Village DCP;
· heritage issues;
· visual and acoustic privacy;
· height, bulk and scale;
· insufficient parking;
· lack of consultation with the council;
· Impacts during construction;
· Loss of bank tenure;
· Increased density; and
· Council's LEP should be revisited.
14 The issues were considered in the application's assessment completed by the officer on 1 May 2006. The Development and Building Unit (DBU) reviewed the application on 11 May 2006 and concurred with the assessment officer's report for approval.
15 The council's Development Control Committee (DCC) met on the 23 May 2006 and the application was deferred for the following reasons:
1. The relation between the retail space and the frontage with regard to our village treatment DCP.
2. Size of the shop.
3. Overlooking of the rear balconies.
4. Articulation of driveway access points.
5. Building design is not particularly desirous for the future character of Hall Street.
6. Adequate provision is to be made within the design of the ground floor commercial spaces for any future requirements for mechanical ventilation systems to be contained within the building envelope.
7. The building has a 5 Green Star rating.
16 The DCC further considered the application on 27 June 2006 and deferred it to allow a site inspection by the DCC on 8 July 2006.
The council’s decision
17 When the appeal was filed the council had not formally determined the application.
18 On 25 July 2006 the council granted a deferred commencement consent to the development application and imposed conditions. However, these conditions are so onerous that it is tantamount to a refusal and the applicant on 2 August 2006 identified its issues in respect of some of the conditions.
1. That condition 1 of Attachment A to Development Consent No 368/2005 (the development consent) should be deleted.
- Particulars
The requirement for the first floor balcony to be set back 6 metres from the rear boundary is not based on any LEP or DCP requirements and is unreasonable.
- Particulars
The requirement for the second floor balcony to be set back 9 metres from the rear boundary is not based on any LEP or DCP requirements and is unreasonable.
- Particulars
The requirement for the third floor balcony to be set back 12 metres from the rear boundary is not based on any LEP or DCP requirements and is unreasonable.
- Particulars
The requirement for double-glazing of all windows and external surfaces is not based on any LEP or DCP requirements is unreasonable and has no proper planning purpose.
- Particulars
There is no planning reason for the condition to be a deferred commencement condition.
- Particulars
- Particulars
There is no planning basis for a requirement that the two retail outlets be combined into one retail outlet.
- Particulars
There is no planning reason for the condition to be a deferred commencement condition.
- Particulars
The condition in its current form is uncertain.
- Particulars
The condition is contrary to the provisions of Part 3 of the NSW Residential Flat Design Code in that the required balcony depth is less than 2 metres.
- Particulars
The condition is not certain and definite. The matter is adequately covered by the schedule of materials and finishes lodged with the development application.
- Particulars
The Applicant accepts the first alternative provided in the conditions. There is no planning reason for the condition as amended to be a deferred commencement condition.
- Particulars
There is no planning basis for nominating one particular architect. The requirement for design verification by a qualified designer is a statutory requirement pursuant to clause 143A of the Environmental Planning and Assessment Regulation 2000.
- Particulars
There are no statutory guidelines for grey water recycling systems. The Applicant is concerned that the process of obtaining approval may be lengthy and may unreasonably delay the issue of a construction certificate.
The hearing
19 The appeal was filed on 2 June 2006.
20 The Court-appointed town planner is Mr R Chambers.
21 At the hearing the court heard evidence on behalf of the respondent council from:
· Ms G Findlay, resident of No 15 Consett Avenue;
· Ms A Findlay, resident of No 15 Consett Avenue;
· Ms J Gentle resident of 11a Consett Avenue;
· Ms J Hill, resident of No 12 Consett Avenue; and
· Ms C McKean resident of No 5/42 Lamrock Avenue;
22 On behalf of the applicant evidence was given by:
· Mr J Brenchley, Architect;
23 Ms K Lucas, Senior Town Planner Waverley Council, prepared the statement of basic facts.
The issues
24 On 3 July 2006 before the deferred commencement consent was granted the council filed a statement of issues.
- Acoustic privacy
- Particulars
- Waverley Local Environmental Plan
- Particulars
- Particulars
- Public Interest
4. The proposed development should not be approved, as it is not in the public interest.
5. The proposed development should not be approved having regard to the submissions received by Council.
25 The deferred commencement conditions appear to be directed at addressing the salient issues:
· Acoustic privacy, and
· Public Interest.
The evidence and findings
Acoustic privacy and public Interest
26 The applicant agreed to amend the original conditions in the manner suggested by the Court-appointed town-planning expert Mr Chambers or as discussed on-site. It was agreed:
· that the southern balcony on the first floor shall have an upstand of masonry to extend full width of that façade to a height of 750mm above the finished floor level, and have frosted glazing up to 1.5 metres above terrace level with timber privacy screens above that with 75mm slats angled upwards to the south [and east] at an angle of 45 degrees. These slats are to be fixed in position across the southern and eastern sides of that terrace.
· The western brick wall on the first floor terrace to Unit 2 is to extend full height to the southern edge of that terrace.
· On the second floor, the western half of the terrace to Unit 5 is to be enclosed by a full height glazed wall. The openings in the western brick wall in the area of the former terrace are to be infilled with brick. The planter box to the remaining terrace area is to be deleted. An upstand of masonry is to extend full width of that façade to a height of 750mm above the finished floor level. Frosted glazing up to 1.5 metres above terrace level with timber privacy screens above with 75mm slats angled upwards to the south and east at an angle of 45 degrees, are to be fixed in position across the southern and eastern sides of that terrace.
· A flat concrete roof is to be provided to the enclosed portion of the former second floor terrace.
· On the third floor the western wall of the southern terrace of Unit 7 is to be extended to the southern edge of the terrace to a height of 1.5m. Frosted glazing up to 1.5 metres above terrace level is to be fixed in position across the southern and eastern sides of the terrace.
· On the third floor level the southern terrace of Unit 7 shall be reduced in depth to 2.0 metres. The set back of the rear wall of the building at level 3 is to be reduced by 500mm and the planter box increased in depth by 100mm (from 600mm to 700mm) to satisfy this requirement.
27 The aim of these amendments to conditions is to provide for greater acoustic privacy of neighbours. Those present agreed that the proposed amendments would assist in attenuating noise likely to be caused by people from within the proposal and using the proposed balconies.
28 I am satisfied that the public interest would be better served with the imposition of these conditions. There are no other matters to be determined as the proposal was otherwise considered satisfactory when considered by the council under s 79C of the Environmental Planning and Assessment Act 1979.
29 For the above reasons, the appeal is upheld.
Conditions
30 The conditions are those in Exhibit 4 as amended during the hearing.
Orders
31 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 368/2005 lodged with the respondent council on 24 June 2005 to demolish the existing building to construct a new mixed-use building with car parking on the land and to strata subdivide at Lot 27, DP 5953 and Lot 1, DP 315776 being No 26 Hall Street, Bondi Beach, is approved subject to Conditions 1 to 73 attached as Annexure A.
3. The exhibits except for Exhibits A, B, C, D, 4, 6 and 7 are returned.
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site atS J Watts
Commissioner of the Court
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