SRSJ Management Pty Ltd v Waverley Council

[2008] NSWLEC 1447

Land and Environment Court

of New South Wales

CITATION:	SRSJ Management Pty Ltd v Waverley Council [2008] NSWLEC 1447
PARTIES:	APPLICANT SRSJ Management Pty Ltd RESPONDENT Waverley Council
FILE NUMBER(S):	10373 of 2008
CORAM:	Tuor C
KEY ISSUES:	Development Application :- residential flat building demolition of existing low rental residential flat building floor space ratio and landscape area deep soil planting provision of on site parking impact on adjoining residents
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 1996
DATES OF HEARING:	3 July 2008 and 11 September 2008
DATE OF JUDGMENT:	5 November 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr A McKelvey, solicitor of Sparke Helmore Lawyers RESPONDENT Mr A Whealy, solicitor of Gadens Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

5 November 2008

10373 of 2008 SRSJ Management Pty Ltd v Waverley Council

JUDGMENT

1 This is an appeal against the refusal by Waverley Council (the council) of a development application (317-2007) under the Environmental Planning and Assessment Act 1979 (the Act) to demolish an existing three storey residential flat building containing 6 units and construct a new four storey residential flat building containing three attached townhouses with basement level parking for three cars accessed by a car lift and strata subdivision at 34 Dellview Street, Tamarama (the site).

2 The key issue between the parties are whether:

(i) the demolition of the exiting low rental residential flat building is acceptable.
(ii) the non compliance with the requirements of Waverley Development Control Plan 2006 (DCP 2006), particularly floor space ratio (FSR) and deep soil planting, is acceptable.
(iii) on site parking should be provided.

The site and its locality

3 The site is located on the eastern side of Dellview Street, near the intersection with Gaerloch Avenue. It is irregular in shape with a frontage of 21.7m to Dellview Street, a rear boundary of 25.6m and side boundaries of 20.18m (north) and 12.635m (south). The site has an area of about 379.4sqm.

4 The site has a significant slope between Dellview Street (RL27.46) and its rear (RL20.26). The site contains a three storey brick residential flat building with a hipped roof. The building was built in the 1930s and has six units each with two bedrooms. The units have no balconies or private outdoor area. There is a common outdoor area at the rear of the site and a common basement laundry accessed off this outdoor space. There is no off street parking.

5 Surrounding development is a mixture of one, two and three storey houses and residential flat buildings.

Planning framework

6 The site is zoned 2(b) under Waverley Local Environmental Plan 1996 (LEP 1996). Residential Flat buildings are permissible with consent within this zone.

7 Clause 18 of LEP 1996 provides criteria for the assessment of demolition of a low rental residential flat building

8 Part D2 - Multi Unit Housing and Part I – Land Use and Transport of DCP 2006 contain development controls that are relevant to the application.

Background and evidence

9 The conference under s34 of the Land and Environment Court Act 1979 (the L&E Act) commenced on site on 3 July 2008. A number of residents spoke about their concerns. The conference was adjourned without termination for the applicant to prepare amended plans.

10 The conference resumed on 11 September 2008. No agreement was reached between the parties and the conciliation conference was terminated. The parties consented to me disposing of the proceedings under s34 (4)(b) of the L& E Act. The parties agreed that the view of the site and the resident evidence could be admitted as evidence in the hearing.

11 The court heard further evidence from Mrs B Conwalker, 20 Gaerloch Avenue and Dr G Oliver 2/19 Gaerloch Avenue. Other residents provided written submissions objecting to the amended proposal.

12 Mr K Nash for, the council and Mr P Grech, for the applicant provided expert planning evidence.

13 Contention 7.3 of the Statement of Facts and Contentions states that:

The proposed development involves the demolition of an existing low rental residential building and is contrary to the provisions of clause 18 of WLEP.

14 No expert evidence was provided to address this contention. Both Mr Nash and Mr Grech stated it was beyond their area of expertise.

15 The parties agreed that five of the six units in the existing building are low cost rental accommodation.

16 An Affordable Rental Housing Report by Adey Planning was submitted with the development application. The report to council of 21 February 2008 which recommended approval of the application states:

Clause 18 – Affordable Rental Housing
Pursuant to clause 18(3) of the Waverley LEP 1996, development consent is required from the council for development affecting a low-rental residential flat building, when such development involves the demolition of the building.

Rental History submitted with the application indicates units 1, 2, 4 and 6 (each 2 bedroom) within the existing flat building are captured within the definition of low-cost rental accommodation. Therefore, Clause 18 of the Waverley LEP 1996 is applicable and will be discussed in further detail in the following sections of this report.

Housing
An affordable housing contribution has been negotiated for
this site that comprises $69,396.35 (for the loss of 5 two-bedroom low cost housing units) and $150,000 for the excess floor space (this involves 30%) value capture for the excess flor space of 108 sqm beyond the floor space of the existing building). This equates to a total affordable housing contribution $219,489. The applicant has agreed to the payment of these amounts and conditions in respect of to these contributions are recommended.

17 At the hearing the applicant initially opposed the imposition of a condition in relation to the contribution for excess floor space. But later agreed to enter into voluntary planning agreements (VPA) requiring an affordable housing contribution and a contribution for excess floor space (conditions 18 and 19).

18 The applicant has also agreed to a condition requiring a one off payment for the relocation and rental costs of the existing tenants ($1000) and providing a minimum of 60 days notice to relocate (condition 17).

19 In the absence of any evidence to the contrary, I am satisfied that while the proposal involves the demolition of a low cost residential flat building, adequate measures have been undertaken to mitigate the impact and address the requirements of cl 18 of LEP 1996.

Non compliance with DCP 2006

20 The existing building exceeds a number of the requirements of DCP 2006. The council was particularly concerned about the proposal’s non compliance with FSR and deep soil planting.

21 The weight to be given to a development control plan is determined in accordance with the principles in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. Clearly DCP 2006 must be the focal point for the consideration of the application. The experts agreed that in the context of the redevelopment of an existing building which already exceeds the requirements of DCP 2006, the application should move towards compliance with the controls and should not result in greater impacts than those resulting from the existing building.

Floor space ratio

22 Mr McKelvey, for the council, provided a useful summary of the relevant controls in DCP 2006, the existing building and the proposal. This states that the FSR control in DCP 2006 is 0.6:1. The FSR of the existing building is 1.588:1 (602.52sqm) and the FSR of the proposal is 1.79:1 (680.59sqm).

23 The existing FSR and the proposal clearly do not comply with the FSR numerical control. The question becomes one of whether the additional FSR will result in an adverse impact and not meet the objectives of the control.

24 Mr Nash and Mr Grech both agreed that the purpose of the FSR control is to control bulk and scale and intensity of use.

25 Mr Nash was principally concerned about the media rooms on level 1. In his opinion these rooms would provide poor amenity due to their location below street level and should be deleted, which would reduce the FSR of the proposal. He accepted that the appearance of the building from adjoining residences and the street would not change.

26 Mr Nash considered that redevelopment of the site provided an opportunity to change the footprint of the building to increase setbacks. He was particularly concerned about the rear setback of 1.2m, which he considered “contributes to the visual dominance of the proposed building when viewed from the Gaerloch Avenue properties”.

27 Mr Grech stated that the additional FSR was acceptable, as it did not add to the overall bulk and scale of the building. The amenity of the media rooms is adequate as they are not primary living areas. He considered that the deletion of the media areas would achieve no benefit as they caused no external impact but would reduce the overall amenity of the townhouses.

28 Mr Grech also stated the overall bulk and scale of the building was acceptable as it is consistent or compatible with the range of buildings in the locality; it complies with the height limit measured from street level within DCP 2006 and is within the existing building envelope. The rear setback, about which Mr Nash is concerned, is a minimum of 1.2m only at one point (south east corner) and increases to approximately 7m (north east corner). Mr Grech said the main part of the proposed building above ground level is setback 1m to 2m more from the rear boundary (excluding the proposed balcony on Level 4), than the existing building.

29 Mr Nash also raised concerns about the roof elements of the proposal, which do not increase the floor space of the building but add to its overall bulk and height. While he raised no objection to a contemporary design he considered the roof elements to be uncharacteristic of the area and to be visually intrusive. Mr Nash stated that if the purpose of the roof elements is to provide light to the internal staircase this could be achieved with ventilated skylights. He supported the imposition of a condition that requires the removal of the roof features.

30 Mr Grech considered that there is no consistent building form or architectural style in the area and there are a variety of roof forms. The proposed roof elements are within the envelope of the existing roof and are therefore of less bulk than the existing pitched roof form. He noted that the roof elements serve a number of functions including the provision of light and air to the units, supporting solar panels, screening plant and as an architectural feature.

31 The experts agreed that the whole building would not be visible, as it would be partially screened by other buildings, particularly from the ocean walk. However, Mr Nash considered the roof elements would be visible from the walk and from other limited vantage points.

32 The experts agreed that the proposal was within the envelope of the existing building as illustrated in the photomontages.

33 I accept Mr Grech’s evidence. The objective of the FSR control in cl 3.4.1 of DCP 2006 is:

To control the size, bulk and scale of developments to reflect the existing and desired future character of the area.

34 The existing character of the area is mixed with a number of residential flat buildings of a similar scale to the existing building as well as one and two storey detached houses. The FSR permissible under DCP 2006 would be significantly lower than the FSR of a number of the existing buildings. It is unlikely that the existing mixed character will change or that there would be redevelopment of buildings to a lower FSR. It is therefore reasonable to assume that the desired future character will remain one where there is a mixture of residential development of different styles, heights, bulk and scale. The proposal is a redevelopment of an existing building and I accept the principle that in this context it is appropriate to move towards compliance with the controls and to ensure that the impacts, when compared to the existing situation, are either less or neutral.

35 The council’s assessment report concluded that:

The building is appropriate in terms of its bulk and scale and mediates between the larger adjacent residential flat building to the north and the dwellings to the south and east that front Gaerloch Avenue.

36 The proposal is generally within the envelope of the existing building. The increase in FSR located below street level results in no increase in impacts on adjoining residences or the streetscape.

37 Part of the proposal projects more than the existing building on levels 1-3 of Unit 3 where the minimum setback from the rear boundary will be only 1.2m in the southeast corner. I accept Mr Nash’s concerns about this setback and consider it to be a negative feature of the proposal. However, of itself it does not warrant refusal of the application. The 1.2m setback is at only one point and increases in response to the splayed rear boundary, the main part of the building is setback more than the exiting building and increasing the setback of the south east corner would severely limit the internal planning of Unit 3.

38 Overall the proposal meets the objectives of the FSR control in that it is of a bulk and scale that reflects the existing and desired future character of the area.

39 The roof elements are an architectural feature, which also serve functional purposes. They are consistent with the design of the building and do not result in any adverse impacts. They will be visible from limited vantage points, including the ocean walk, but do not add to the overall bulk or height of the building in a material way that would require their deletion. I have therefore not included a condition to this effect.

Landscape Area

40 The key disagreement between the experts was the extent of area for deep soil planting. Based on figures provided by the council, the deep soil area of the existing building is 20.7% of the site and the proposal is 21%. Cl 4.6.3 of DCP 2006 requires 30% of the site area for deep soil planting. There was disagreement between the experts as to what should be included as deep soil area. However, this disagreement does not effect their conclusions in any material way.

41 Mr Nash considered that a development without on site parking would enable compliance with the deep soil planting controls.

42 Mr Grech considered that the proposal would provide a good landscape outcome that would be a significant improvement on the existing situation. Overall the proposal provides about 44% of the site as landscaping (40% required under DCP 2006 and 31% existing). A minimum 1m depth of soil is to be provided and due to the underlying geology there is effectively no difference in the vegetation that can be planted in the soft landscape areas above the basement garage compared to natural ground.

Findings

43 While the proposal does not comply with the deep soil planting area in DCP 2006 it exceeds the overall landscape requirement and will provide a landscape outcome that is a significant improvement on what currently exists on the site and in the area. The proposal meets the objectives for landscaping at 4.6.1 of DCP 2006.

44 The removal of the basement car park would provide greater deep soil planting but would not change the appearance or nature of landscaping in any material manner. There would therefore be little benefit to be gained from this change for adjoining properties or the wider area while there would be considerable dis-benefit to the development and the immediate area by the provision of no on site parking.

Car parking

45 The existing building provides no on site parking. The proposal will provide three spaces, one for each unit, accessed via a car lift.

46 Mr Nash considers that no parking should be provided on site because it is not characteristic of the locality, particularly on sites sloping down from the street and does not comply with cl 5.3(b) of Part I1 of DCP 2006 which states:

5.3 New vehicle crossings
(b) Where there is no car parking on an original lot and off-street parking is not characteristic, vehicular access from the street is not permitted.

47 Mr Nash also considered that the extent of excavation, the increase in bulk, poor amenity and loss of deep soil area were also reasons why car parking should not be provided.

48 Mr Grech considered that the provision of three spaces complied with the requirements of cl 4.2.3 of DCP 2006 and was a reasonable expectation for the type of dwellings in an area where on street parking is in high demand. Further Mr Grech considered that off street parking is characteristic of the area and that cl 5.3 refers to “New Vehicle Crossings” not on site parking. DCP 2006 restricts vehicle access where there is no parking on the site and where off street parking is not characteristic. In his opinion the proposal extends an existing driveway in an area where parking is characteristic.

49 Mr Nash also raised concerns about the car lift entry which is forward of the front building and does not comply with cl 5.2(a) of Part I1. In Mr Grech’s opinion the structure appears no different to other garages in the street and would not adversely impact on the streetscape.

50 The objectives for car parking in cl 4.2.1 of DCP 2006 are:

• To integrate adequate carparking without compromising street character, landscape quality, or pedestrian amenity and safety.
• Encourage increased use of public transport and bicycles

51 DCP 2006 requires a minimum of 3 car spaces but it allows this requirement to be waived or reduced if a better planning outcome is to be achieved. The provision of carparking is not an unreasonable expectation of a new development with the size and quality of units proposed and it will reduce the demand for on street parking, which is in short supply.

52 The carparking is in a basement and therefore does not impact on the streetscape other than the entry lift and driveway crossing. I accept Mr Grech’s evidence that both these elements are characteristic of the streetscape and will not compromise it. The extent of the basement reduces the area of deep soil but, as discussed, an acceptable landscape outcome is still achieved. There is no evidence that the proposal will impact on pedestrian amenity or safety. The proposal therefore meets the objective of the control. The basement will require extensive excavation but the parties have agreed on appropriate conditions to address this part of the development.

Resident’s concerns

53 The issues raised by residents reflect those raised by council and are addressed above. In addition, Dr Oliver was concerned about the privacy impacts of the proposal, particularly overlooking from the balconies. The original proposal provided balconies on three levels. The amended proposal provides only one balcony for each unit on level 4, off the living area. The balconies are above the height of the buildings in Gaerloch Street, which will limit overlooking of these properties.

54 On the other levels fixed glazing is proposed and on level 3 the applicant has agreed to a condition, which removes the “non trafficable timber louvres” and requires 1 m high non transparent panels on the eastern windows. The experts agree the proposal will not result in unreasonable overlooking or privacy impacts for 17 and 19 Gaerloch Street.

55 The issues of view loss have been resolved by the amended plans. Overshadowing was agreed by the experts to be acceptable as it does not materially increase overshadowing when compared to the existing building.

56 The orders of the Court are:

1. The appeal is upheld

2. The development application (317-2007) to demolish an existing three storey residential flat building containing 6 units and construct a new four storey residential flat building containing three attached townhouses with basement level parking for three cars accessed by a car lift and strata subdivision at 34 Dellview Street, Tamarama, is approved subject to the conditions in Annexure A.

3. The exhibits, except Exhibits A, B, C and F, are returned

___________________

Annelise Tuor
Commissioner of the Court