St Hilliers Pty Limited v Lane Cove Council

[2003] NSWLEC 333

>

Land and Environment Court

of New South Wales

CITATION:	St Hilliers Pty Limited v Lane Cove Council [2003] NSWLEC 333
PARTIES:	APPLICANT: St Hilliers Pty Limited RESPONDENT: Lane Cove Council
FILE NUMBER(S):	10727 of 2003
CORAM:	Watts C
KEY ISSUES:	Development Application :- Use of SEPP1 SEPP 1 objections Internal amenity and Quantum of public open space.
LEGISLATION CITED:	Lane Cove Local Environmental Plan 1987, (LCLEP) Rosenthal Avenue Development Control Plan, (RADCP) State Environmental Planning Policy NO 11 - Traffic Generating Developments, (SEPP11) State Environmental Planning Policy No 32 - Urban Consolidation (Redevelopment of Urban Land), (SEPP32) State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP65) Residential Flat Design Code, (Code) Development Control Plan No 4 - Controls for Site Waste Management and Minimisation, (DCP4) Development Control Plan No 5 - Access and Mobility, (DCP5) Environmental Planning and Assessment Act 1979, ss 79C, 97
CASES CITED:
DATES OF HEARING:	2/12/03 - 3/12/03
DATE OF JUDGMENT:	12/09/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr D Wilson, barrister instructed by Mr GL Pignone, solicitor of Kemp Strang RESPONDENT Mr A M Pickles, barrister instructed by Ms C Barton, solicitor of Cutler Hughes & Harris

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10727 of 2003

Watts C

9 December 2003

St Hilliers Pty Limited

Applicant
v

Lane Cove Council

Respondent

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Lane Cove Council (the council) to refuse a development application to erect a new public car park, retail and residential apartments at Lots 28 - 34, 37 and Part Lot 35 DP 10155, Lots 1 and 2 DP 870938 and Lot 1 DP 182149, being No 2- 20 Rosenthal Avenue, Lane Cove also known as the Rosenthal Avenue car park.

2 The Rosenthal Avenue car park is located adjacent to and on the western side of the Lane Cove town centre (or ‘village’) and is bounded by Birdwood Avenue to the north, Rosenthal Avenue to the west, Birdwood Lane to the east, and by Rosenthal Lane to the south.

3 In December 1999 the council, the owner of the land, called for tenders to develop it with the objectives to:

• further utilise a site which is currently used solely for car parking, in order to increase the return on a public asset;
• increase community facilities in the Lane Cove town centre; and
• build on the identity and village character of the Lane Cove town centre in accordance with the vision and objectives as described in the Lane Cove Town Centre Masterplan.

4 The tender documents required conformity with:

• a floor space ratio of approximately 1.0:1 over the whole site;
• a maximum height of 8.0 metres above existing ground levels; and
• the provision of an additional 125 public car parking spaces.

5 St Hilliers Pty Limited was the successful tenderer and is the applicant in these proceedings.

6 I visited the land in company with the parties on the morning of the first day of proceedings. By consent, evidence was given on-site by concerned residents.

7 I have concluded that the application should fail for reason that the use of State Environmental Planning Policy No 1, (SEPP1) in this instance, it is inappropriate where there is a conflict in the FSR standards applying to the land under various planning instruments. Even if SEPP1 applies, in the circumstances of this case, the SEPP1 objections to the FSR standard, and SEPP1 objections to residential density standards should not be upheld. On merit, the application would also fail, as it would provide inadequate public open space, and the internal amenity of the dwelling units would be poor.

The land

8 The land, irregular of shape, has an area of 6,670m2, and has frontages of about 156m to Rosenthal Avenue; 44m to Birdwood Avenue; 45m to Rosenthal Lane; and 133m to Birdwood Lane.

9 Part of the land intrudes into the intersection of Rosenthal and Birdwood Avenues and is included in the site area calculations despite it being utilised solely for road purposes.

10 The land falls around 6m from east to west measured through the centre of the land, and also slopes gently from south to north with a fall of around 3.5m measured through the long axis. The highest part of the land is at the southeastern corner where there is pedestrian access from the car park to the pedestrian mall via both Birdwood and Rosenthal Lanes. The lowest point of the land is the entrance/exit to the car park on Rosenthal Avenue, nearly opposite Finlayson Street.

11 Erected on the land is an open public car park with one hundred and seventy-three (173) public car parking spaces accessed from Birdwood and Rosenthal Avenues. There are public toilets and an electricity substation on the Birdwood Lane frontage. About ninety, (90) mature and semi-mature trees as well as ground covers and shrubs grow on the land.

12 Birdwood and Rosenthal Lanes are used to service the rear of properties fronting Longueville and Burns Bay Roads including those fronting Burns Bay Road plaza. Pedestrians use them also to access the shops.

Relevant planning controls
Lane Cove Local Environmental Plan 1987, (LCLEP)

13 The land is zoned Residential 2(c) under the provisions of the LCLEP (as amended) and the proposal is permissible with consent. The maximum floor space ratio, (FSR) within the 2(c) zone is 0.75:1. The maximum height of development within the 2(c) zone is 8m and that applies to the land.

14 The aims of this zone under the LCLEP are:

…to retain the existing high level of residential development. Development for the purposes of villa homes, town houses and residential flat buildings which is sympathetic to the neighbourhood in relation to setbacks, building mass, views, dwelling colour, off street parking, landscaping and overshadowing of neighbouring development will be permitted within this zone.

15 The 2(c) zone was applied to the subject land in October 2000 under Amendment No 48 of the LCLEP, (LCLEPAm48) and its aims were:

(i) to provide additional public car parking;

(ii) to encourage development which is compatible with, and has due regard for, the amenity of surrounding development;

(iii) to fulfil the requirements of the State Government's objective of a more compact city;

(iv) to set out development standards directed at achieving development which maintains the existing character of the built environment;

(v) to ensure that any development takes account of the principles of ecologically sustainable development; and

(vi) to facilitate development for community purposes, including residential development as part of a diversified local centre.

16 These aims were not incorporated into the primary instrument, being the LCLEP, so it could be argued these objectives no longer apply to the land. There are no specific objects in the LCLEP, for the standards of FSR, residential density or height. In order to determine the SEPP1 objections it is necessary to identify the underlying object of the development standards.

17 LCLEPAm48 inserted the following clause:

19H

(1) This clause applies to land being Lots 28-34, Part Lot 35 and Lot 37, DP 10155, Lots 1 and 2 DP 870938 and Lot 1, DP 182149, known as Nos 2-20 Rosenthal Avenue, Lane Cove, as shown edged heavy black on the map marked Lane Cove Local Environmental Plan 1987 (Amendment No 48).

(2) A person may, with the consent of Council, carry out development on land to which this clause applies for the purposes of residential flat buildings, shops and refreshment rooms, provided that:

(a) The total floor space gross area of all buildings used for the purpose of shops and refreshment rooms will be no greater than 1,000 square metres, and

(b) no part of any structure will exceed a height of 8 metres directly above any point on the ground surface as at the date of commencement of this clause, and

(c) the carrying out of development will increase public carparking to a level that is greater than that which existed at the commencement of this clause.

Note: Council will include details of the number of additional public car parking spaces in a development control plan to be prepared for the site.

For the purposes of State Environmental Planning Policy No.1 - Development Standards, the term development standards include the provisions of sub-clause (2).

Rosenthal Avenue Development Control Plan, (RADCP)

18 The council adopted the RADCP in March 2001, after it was placed on public exhibition from 24 November 2000 to 22 December 2000 and its objectives are:

(i) to facilitate the provision of additional public carparking;

(ii) to encourage development which is compatible with, and has due regard for, the amenity of surrounding development;

(iii) to fulfil the requirements of the State Government's objective of a more compact city;

(iv) to set out development standards directed at achieving development which maintains the predominant scale of the surrounding built environment;

(v) to ensure that any development takes account of the principles of ecologically sustainable development;

(vi) to encourage innovative development which has regard to the ‘village’ character of the Town Centre, maximises pedestrian accessibility, within the site and in relation to the surrounding Centre, includes a public space component, and creates a visual interrelationship between the site and surrounding development by the use of spatial and built elements; and

(vii) provide access for persons with disabilities in accordance with industry requirements, Council policy and current best practice.

19 RADCP requires importantly, development to conform with:

• a FSR of 1:1, [Note: Exhibit 2 Clause 8 p 3];
• a maximum retail [floor] area of 1000m2, [Note: Exhibit 2 cl 4 p 2;
• a height of 8m regulated by the LCLEP, [Note: Exhibit 2 cl 6 p 2];
• provision of public open space equal to 50% of the site, [Note: Exhibit 2 cl 12 p 4]; provision of a major proportion of this [public open] space to be located at the southern end of the site, [Note: Exhibit 2 cl 12 p 4];
• a minimum of 300 public car parking spaces, [Note: Exhibit 2 cl 14 p 4].

20 Under the heading of FSR in the RADCP it is noted:

Council recognises the inconsistency with the development standard of 0.75:1 for the 2(c) zone under the Lane Cove Local Environmental Plan. Any development application will, therefore, need to be accompanied by a SEPP No 1 Objection.

State Environmental Planning Policy No 11 - Traffic Generating Developments, (SEPP11)

21 Under the provisions of SEPP11, the proposal would be classified as a Schedule 1 development as it provides parking for more than 200 motor vehicles. The council referred the application to the Roads and Traffic Authority's, (RTA) Sydney Regional Development Advisory Committee (“SRDAC”) for comment.

22 By letter dated 7 September 2001 SRDAC did not oppose or object to the proposal and made its recommendations.

State Environmental Planning Policy No 32 – Urban Consolidation (Redevelopment of Urban Land), (SEPP32)

23 Clause 2(1) of SEPP32 aims:

(a) to promote the orderly and economic use and development of land by enabling urban land which is no longer required for the purpose for which it is currently zoned or used to be redeveloped for multi-unit housing and related development: and (b) to implement a policy of urban consolidation which will promote the social and economic welfare of the State and a better environment by enabling:
(i) the location of housing in areas where there are existing public infrastructure, transport and community facilities; and (ii) increase opportunities for people to live in a locality which is close to employment, leisure and other opportunities; and

(iii) the reduction in the rate at which land is released for development on the fringe of existing urban areas.

24 Under cl 2(2) of SEPP32 the objectives are:

(a) to ensure that urban land suitable far multi-unit housing and related development is made available for that development in a timely manner; and

(b) to ensure that any redevelopment of urban land for multi-unit housing and related development will result in:

(i) an increase in the availability of housing within a particular locality; or

(ii) a greater diversify of housing types within a particular locality to meet the demand generated by changing demographic and household needs; and

(c) to specify:

(i) the criteria which will be applied by the Minister to determine whether the redevelopment of particular urban land sites is of significance for environmental planning for a particular region; and (ii) the special considerations to be applied to the determination of development applications for multi-unit housing and related development on sites of such significance.

25 Clause 7(1) of SEPP32 implements the aims and objectives:

7(1) Each council must, when preparing environmental planning instruments or considering development applications relating to urban land, implement the aims and objectives of this Policy to the fullest extent practicable.

State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP65)

26 SEPP65 was gazetted on 26 July 2002, along with the Environmental Planning and Assessment Amendment Regulation 2002, (SEPP65Reg), and applies to residential flat buildings comprising three storeys or more and four or more self-contained dwellings.

27 The parties agreed that the proposal is a residential flat building and as it would be, in part three storeys in height and more than four self-contained dwellings, SEPP65 would apply.

28 The aims and objectives of cl 2 of SEPP65 are:

(1) This Policy aims to improve the design quality of residential flat development in New South Wales.

(2) This Policy recognises that the design quality of residential flat development is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design.

(3) Improving the design quality of residential flat development aims:

(a) to ensure that it contributes to the sustainable development of New South Wales:

(i) by providing sustainable housing in social and environmental terms, and

(ii) by being a long-term asset to its neighbourhood, and

(iii) by achieving the urban planning policies for its regional and local contexts, and

(a) to achieve better built form and aesthetics of buildings and of the streetscapes and the public spaces they define, and

(b) to better satisfy the increasing demand, the changing social and demographic profile of the community, and the needs of the widest range of people from childhood to old age, including those with disabilities, and

(c) to maximise amenity, safety and security for the benefit of its occupants and the wider community, and

(d) to minimise the consumption of energy from non-renewable resources, to conserve the environment and to reduce greenhouse gas emissions.

(1) This Policy aims to provide:


(i) consistency of policy and mechanisms across the State, and

(ii) a framework for local and regional planning to achieve identified outcomes for specific places.

29 The Minister may establish design review panels under cl 21 of SEPP65 to advise councils on development applications for residential flat development. Members of these panels are to be independent of councils. However, savings and transitional provisions provide that where a development application is lodged, but not determined, before the gazettal of the policy, the council is not required to obtain the advice of a design review panel.

30 As the subject development application was lodged on 21 June 2001 and SEPP65 was gazetted on 26 July 2002, over a year after the lodgement date, and no design review panel had been appointed by the council by the time the application was determined by the council in December 2002, consideration was to be against the Better Urban Living Guidelines.

31 Clause 30(2) of SEPP65 relevantly states:

(2) In determining a development application for consent to carry out residential flat development, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration):



(a) the advice (if any) obtained in accordance with subclause (1), and

(b) the design quality of the residential flat development when evaluated in accordance with the design quality principles, and

(c) the publication ‘Residential Flat Design Code’ (a publication of the Department of Planning, September 2002).

32 The ‘design quality principles’ referred to in Clause 30(2)(b) are contained in Part 2 of SEPP65, and include context; scale; built form; density; resource, energy and water efficiency; landscape; amenity; safety and security; social dimensions and aesthetics.

33 Notwithstanding Clause 30(2)(c) of SEPP65, cl 32 of the amended instrument states:

32. The amendments made to this Policy by State Environmental Planing Policy No 65 - Design Quality of Residential Flat Development (Amendment No.1) do not apply to a development application made but not finally determined before the commencement of those amendments.

34 Amendment No1 of SEPP65, gazetted on 20 December 2002, modified Clause 30(2)(c) of SEPP65 by inserting reference to the Residential Flat Design Code in lieu of the Better Urban Living Guidelines.

35 Prior to its amendment, cl 30(2)(c) of SEPP65 was relevantly in the following terms:

(2) In determining a development application for consent to carry out residential flat development, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration):


(a) …
(b) ...
(c) the publication Better Urban Living Guidelines for Urban Housing in NSW (Department of Urban Affairs and Planning and NSW Government Architect 1998), unless:



(i) if a development control plan applies to the residential flat development, the development control plan has been endorsed under clause 27(2) by the relevant design review panel or has been approved in accordance with clause 21A of the Environmental Planning and Assessment Regulation 2000, or

(ii) if a master plan applies to the residential flat development, the master plan has been made or adopted in accordance with clause 29.

36 It was agreed between the parties that the subject development application was lodged prior to the gazettal of the principle instrument and the amendment and consequently Amendment No 1 of SEPP65 does not apply in these proceedings.

37 Under cl 30(2)(c)(i) of SEPP65 (as it was prior to Amendment No 1) none of the DCP's applying to the subject land has been approved in accordance with cl 21A of the Environmental Planning and Assessment Regulation 2000 - the reason being that these DCP's predate cl 21A - and consideration needs to be given to the Better Urban Living Guidelines. However, since the Better Urban Living Guidelines were published in March 1998 and apply to ‘urban housing’, which includes residential buildings of more than three-storeys, and the proposal does not have more than three storeys, the Guidelines do not apply to the proposed development. However, the parties agreed that the Residential Flat Design Code [Note: Exhibit 8 Extract of the Code] might be used as a guide.

Residential Flat Design Code, (Code)

38 The Code has the site configuration objectives, [Note: Exhibit 8 p 50]:

• To optimise solar access to residential apartments within the development and adjacent development;

• To contribute positively to desired streetscape character;
• To support landscape design of consolidated open space areas;
• To protect the amenity of existing development;
• To improve the thermal efficiency of new buildings.

39 The rule of thumb of the Code is, [Note: Exhibit 8 p 85:

• Living rooms and private open spaces for at least 70% of apartments in a development should receive a minimum of three hours of direct sunlight between 9.00am and 3.00pm in midwinter. In dense urban areas a minimum of two hours may be acceptable;

• Limit the number of single-aspect apartments with a southerly aspect (SW-SE) to a maximum of 10 per cent of the total units proposed. [Applicants for] [d]evelopments which seek to vary from the minimum standards must demonstrate how site constraints and orientation prohibit the achievement of these standards and how energy efficiency is addressed (see: Orientation and energy efficiency).

Development Control Plan No 4 - Controls for Site Waste Management and Minimisation, (DCP4)

40 DCP4 provides general and specific controls for the management of waste both during and after the construction period. For multi-unit residential buildings and retail premises, the requirements are:

• A waste management plan detailing the type and volume of waste that is likely to be generated, stored and treated on the site and how the residual is to be disposed of;


• Development application drawings which show, inter alia, location of waste cupboard spaces within dwellings, location of waste storage and recycling areas, location of collection areas and access arrangements for collection vehicles.

Development Control Plan No 5 - Access and Mobility, (DCP5)

41 DCP5 provides guidelines and controls for access both to and within buildings and public spaces for people who have a disability.

The proposal and its history

42 Development application No 204/01, originally was lodged with the respondent council on 21 June 2001. That development application sought approval for a mixed use development, comprising ninety-three (93) residential flats, eleven (11) retail suites or shops, a public plaza, three levels of basement car parking and open space, at Nos 2-20 Rosenthal Avenue, Lane Cove on the Rosenthal Avenue car park.

43 Originally, three hundred and fifty (350) car parking spaces were to be provided for public use, eleven (11) spaces for retail use and one hundred and thirty two (132) spaces were to be set aside for residents’ private use.

44 By letter dated 19 June 2001 the council's General Manager had given approval on behalf of the council, as landowner, to the lodgement of a development application by the applicant.

45 The development application has been amended on several occasions prior to the hearing and the amended proposal, for which the applicant, now seeks consent is for:

• Sixty-six (66) residential flats;

• 6,198.07m2 of gross floor area, (GFA);
• a floor space ratio, (FSR) of 0.93:1;
• around 350m2 of retail space;
• three hundred and sixty-three (363) public car parking spaces;
• nine (9) retail car park spaces;
• seventy-four (74) residential car parking spaces; and
• a public plaza located in the south eastern corner of the site.

46 The parties agreed that the amended proposal now complies with the LCLEP except for:

• Clause 17C(4)(a) of the LCLEP, which limits the floor space ratio (‘FSR’) of all buildings on the site to 0.75:1;


• Clause 17C(4)(b) of the LCLEP, which limits the site density to no greater than one dwelling for each 175 square metres of site area; and

• Clause 19H(2)(b) of the LCLEP, which limits the height of any part of any structure on the site to no greater than 8 metres, as measured directly above any point on the ground surface as at 6 October 2000, and

47 The amended development proposal would result in:

• a FSR of 0.93:1 (the original development application proposed a FSR of 1.2:1);

• a density of development of around one dwelling for each 101m2 of site area or 66 dwellings/apartments on a site of 6,670m2. (The original DA had a density of development of around one dwelling for each 71.7m2 of site area or 93 dwellings/apartments on a site of 6,670m2); and

• a maximum height of approximately 10.6m, with most buildings on the site breaching the 8.0m height limit at some point but to a lesser degree.

48 State Environmental Planning Policy No 1-Development Standards objections (SEPP1) have been lodged relating to these non-compliances.

49 The application does not meet the 50% public open space under the RADCP and there is doubt that it meets the requirement for 70% of all living rooms within the dwelling units receiving three hours of sunlight between the hours of 9.00am to 3.00pm in midwinter.

50 A waste management plan was prepared by the applicant and submitted with the development application.

Notification

51 The first application was notified to nearby owners and occupants between 31 July 2001 and 27 August 2001 and the council received 175 submissions. The application before the Court was not advertised afresh but a notification of the development application between 31 May 2002 and 28 June 2002 resulted in there being thirty-five submissions and three petitions. Concerns included, [Note: Exhibit 7, Summary]

• The proposal is wrong in principle, and it is better to retain the existing landscaped car park;
• The public open space should be 50% of the site area in order to be useful and attractive;
• Traffic problems;
• The proposal would overshadow Birdwood Lane with the result that the proposed plants would be unlikely to grow;
• Security and safety concerns with the public use of the underground car park;
• The present car park and area is used by the elderly who are particularly vulnerable to attack;
• The village centre would be separated from the residential areas;
• Meant to be a transition between the residential and commercial and still a bulk of building;
• Wall of building along Rosenthal Avenue;
• No elevation to Rosenthal Avenue to gauge the bulk;
• LCLEP and RADCP are site-specific and many of the controls are not met, and the SEPP1 objections are inappropriate;
• Public open space calculation should not include perimeter planting;
• The public open space should be in the plaza and not between buildings;
• The amphitheatre is oriented so people would be looking into the sun;
• Visitors to the residential section would be likely to take up public car parking spaces; and
• Cars parked in Birdwood Lane would obstruct passing vehicles some servicing the commercial uses.

The council’s decision

52 By notice dated 24 December 2002, the council refused the application for reasons reflected in the issues.

The hearing

53 The appeal was filed in June 2003.

54 Messrs J Nangle and R Chambers consultant town planners for the respondent and applicant respectively, conferred and prepared joint statements in Exhibits E, F H and K. Mr T Byrnes prepared his statement, [Note: Exhibit G]

55 Concerned residents gave oral evidence on site. This evidence from Mr P Gibbs, Ms N Thorpe, Ms L Benson, Ms C Gray, Mr D Stuart and Mr J Dressler became Exhibit 7.

The issues

56 On 25 August 2003 the council filed an amended statement of issues:

Internal amenity, height and scale

1 Whether the proposed development is excessive in height, bulk and scale for the site on which it is proposed having regard to:

a) the exceedance of the 8 metre height control in clause 19H(2)(b) of the Lane Cove Local Environmental Plan 1987 (Lane Cove LEP) and the acceptability of the SEPP 1 objection in respect of height; and

b) overshadowing within the development.

Housing density and separation

2 Whether the proposed residential flats are inappropriate for the site on which it is proposed having regard to:

(a) non-compliance with the floor space ratio limit of 0.75:1 in clause 17C(4)(a) of the Lane Cove LEP and the acceptability of the SEPP 1 objection in respect of floor space ratio;

(b) the non-compliance with the density requirement in clause 17C(4)(b) of the Lane Cove LEP of not greater than one dwelling for each 175 square metres of site area and the acceptability of the SEPP 1 objection in respect of the density control;

(c) the requirements of SEPP No. 65 - Design Quality of Residential Flat Development;

(d) the inadequate setbacks and poor visual and acoustic privacy on the Birdwood Lane frontage; and

(e) overshadowing of the proposed development by buildings on the eastern side of Birdwood Lane.

Landscaping

3. Whether the proposed removal of existing trees on the site will have an unacceptable impact on the character of the area, particularly the amenity of the Birdwood Lane frontage having regard to:

(a) clause 11 of the Rosenthal Avenue DCP including the objective to maintain the existing streetscape and level of amenity for users of the site and to provide sun protection; and

(b) the recommendations of the report, “Rosenthal Avenue Carpark Assessment of Vegetation”, prepared by Arborscapes Pty Limited in May 2000, referred to in clause 11 of the Rosenthal Avenue DCP;

(c) whether the proposed landscaped areas are sufficient in size to accommodate large canopy trees to soften the visual impact of the development.

Public open space

4. Whether the proposed plaza development provides inadequate open space for public use having regard to:

(a) clause 12 of the Rosenthal Avenue DCP which requires 50% of the site to be retained for public open space; and

(c) the public interest in retaining open space.

Waste management

5. Whether the location, size and access to waste storage areas are inappropriate for the proposed development having regard to the requirements of the Lane Cove Development Control Plan No. 4 - Controls for Site Waste Management and Minimisation.

Public interest

6 Whether the proposed development is in the public interest having regard to the concerns and values of objectors as expressed in their submissions.

57 The following emerged as the salient issues:

• Use of SEPP1 in respect of FSR;
• Consideration of the SEPP1 objections to FSR and residential density;
• Consideration of the SEPP1 objections to height;
• Internal amenity: privacy and overshadowing being a function of the breach of the height limit and density on the land and although consistent with the DCP exceeds that of the LEP and exceeds the density of 1 per 175 persons per square metre of site area;
• Quantum of public open space: and on that hangs the issue of security and concern about the use of the central spine and whether open during the day; and
• Waste management.

The evidence and findings

Use of State Environmental Planning Policy No 1 in respect of FSR, (SEPP1)

58 During the hearing I put to the parties, that I would like them to address me about the use of SEPP1 to effect a change in the FSR under the LCLEP of 0.75:1 to around 1:1 under the RADCP in order to permit the proposal with a FSR of 0.93:1. I referred the parties to the decision in Hooker Corporation Pty Limited v Hornsby Shire Council (unreported) LEC Appeal No 10601 of 1985 Cripps J, 2 June 1986, and to his Honour’s comments that:

The Court must assume a development standard in a planning instrument has a purpose.

…it [being SEPP1] is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act.

59 Somewhat surprisingly, both parties submitted that SEPP1 could be used in the manner sought by the applicant to allow some flexibility in the application of the FSR standard.

60 Mr Wilson submitted that there is a distinction to be drawn between the principles enunciated by his Honour in Hooker v Hornsby and the present case, in that here, the applicant is not seeking to effect general planning changes throughout the municipality but changes for a specific site. Mr Wilson referred to a later case of his Honour, in Legal and General Lifev North Sydney Council, 1989 68 LGRA 192 at 203 and that the discretion under SEPP1 is wide and subject to any limitations in the instrument itself. In that case, his Honour found that the SEPP1 objection was well founded, and the grant of consent would be consistent with the aims of SEPP1 and ss 5 and 90 of the EPA Act. Mr Wilson submitted that under s 79C of the EPA Act, one might conclude that the discretion residing in the Court is further broadened. He submitted that SEPP1 is a ‘tool’ to be applied by the consent authority. He submitted the principles in that case, were confirmed by the NSW Court of Appeal, (CoA) in 69 LGRA 201.

61 Mr Pickles submitted that the decisions of his Honour Cripps J in Hooker v Hornsby and Legal and General Life v North Sydney suggest that SEPP1 is to be widely applied and that those decisions are not inconsistent one with the other.

62 Mr Wilson’s submissions do not convince me that where a municipality-wide local environmental plan fixes one FSR and a site-specific development control plan fixes another, SEPP1 may be used to remedy the discrepancy. It is also noteworthy in this context, that the council has seen fit to maintain the municipal-wide FSR of 0.75:1 when in it gazetted LCLEPAm48 in October 2000, despite inclusion of a maximum of 1,000m2 of retail floor space, over and above that density expected in the residential 2(c) zone.

63 I asked the parties whether a local environmental study had been prepared to support the site-specific LCLEPAm48. None was found. So no light was shed on why the council had not elected to increase the FSR from 0.75:1 to 1:1 when it amended the LCLEP. In the absence of any justification, I must assume that the 0.75:1 FSR has a planning purpose and should not be departed from lightly.

64 The fact that the council had included the 1:1 FSR in the RADCP is not sufficient to my mind to justify a departure from the LCLEP, as under s 72(3) of the EPA Act:

Such a development control plan shall generally conform to the provisions of the local environmental plan or the draft local environmental plan, which applies to the land to which the development control plan applies.

65 It is clear, in this case that the FSR in the RADCP does not generally conform to the FSR in the LCLEP. The former stipulates 1:1 and the latter 0.75:1 in the same field. There is an inconsistency between the two that the council has recognised in its note on page 3 of the RADCP under the heading of FSR:

Council recognises the inconsistency with the development standard of 0.75:1 for the 2(c) zone under the Lane Cove Local Environmental Plan.

66 As a result the application must fail for reason that SEPP1 is an inappropriate mechanism, in the circumstances of this case, to effect the change in the FSR and as the proposed FSR of 0.93:1 exceeds the FSR under the LCLEP of 0.75:1, the application cannot be approved.

67 It is also important that where the council is both the planning authority and an interested party proper planning procedures should be followed, to ensure that the council should be seen to be beyond reproach.

68 Lest I be wrong in my conclusion in respect of the use of SEPP1 in relation to the FSR, I have considered this and other SEPP1 objections and the merit of the application.

SEPP1 objection to FSR and residential density

69 The amended proposal would have a FSR of 0.93:1 and in excess of the standard in the LCLEPAm48 of 0.75:1. Thus a SEPP1 objection to FSR must be upheld if consent is to be granted.

70 SEPP1 aims to provide flexibility in the application of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act.

71 Clauses 17C(4)(a) and 17C(4)(b) of the LCLEP provide development standards for residential flat buildings:

(4) The Council is not to consent to development on land within Zone No 2(c) for the purpose of residential flat buildings unless:

(a) the floor space ratio of all buildings on the land does not exceed 0.75:1; and

(b) the total number of dwellings on the land is not greater than one dwelling for each 175 square metres of site area.

72 When applied to land with an area of 6,670m2 these clauses would yield:

• 5,002.5m2 of GFA, (6,198.07m2 proposed) and
• 38.1 dwelling units (66 proposed).

73 Under the provisions of SEPP1, the applicant objected to the above development standards for the following reasons, [Note Exhibit C SEPP1 objection in Appendix 10]:

• [1] The proposed development substantially complies with the provisions of, inter alia, State Environmental Planning Policy No 32 - Urban Consolidation (Redevelopment of Urban Land), the Lane Cove LEP 1987, the Residential Zones DCP 1987, and the Rosenthal Avenue DCP;
• [2] Council rezoned the site, pursuant to LEP Amendment No 48, to Residential 2(c) in October 2000 to facilitate the development of, inter alia, residential flats and shops. Clause 2 of LEP Amendment No 48 sets out various site specific aims and objectives for this site which include:

(iii) to fulfil the requirements of the State Government's objective of a more compact city,

The council itself anticipated that the development standard of 0.75:1 would be varied under a SEPP1 objection;

• The proposed FSR of 0.93:1 complies with the 1:0:1 FSR limit imposed by the above-mentioned clause of the site-specific RADCP, but not with the development standard of 0.75:1 in LCLEP. Nevertheless, the proposal is not of excessive bulk and scale, its height is compatible with nearby buildings and the traffic generation (which predominantly comes from the public car park) can be accommodated within the locality;
  


• [3] The site has been identified by Council for multi-unit housing and is strategically located adjacent to the retail centre or ‘village’ of Lane Cove being well serviced by existing public infrastructure, public transport and community facilities. The proposed development will increase the availability of housing adjacent to this retail centre and will assist in meeting the demand for residential flats which are close to employment, leisure and retail opportunities;

• [4] Sixty-six (66) residential apartments on a site of 6,670m2 results in a density of one dwelling for each 101m2 of site area. If the DCP requirement for the FSR not to exceed 1:1 is accepted, the density standard of one dwelling per 175 square metres of site area would require each apartment to have an area of 175.6 square metres - this is clearly an illogical and undesirable outcome in the circumstances of this case;

• [5] It would be inconsistent with urban consolidation objectives, ESD principles, and market expectations/requirements for each dwelling on the subject site to have to have an area of 175m2;

• [6] Given that no environmental harm arises out of the greater density proposed, that increasing the number of dwellings close to established facilities and services is a positive planning outcome not a negative consequence and that neither the requirement for one dwelling per 175m2 of site area nor for a FSR of 0.75:1 have been identified by Lane Cove Council in the design competition, the call for expressions of interest, the invitation-to tender, or in the site specific DCP, then imposition of these standards is both unreasonable and unnecessary and would tend to hinder the achievement of the aims and objectives of the Environmental Planning and Assessment Act;

• [7] The site is located adjacent to the Lane Cove village zoned 3(a) which generally has a FSR limit of 2:1 (for retail and commercial uses), however, the maximum FSR is increased to 2.5:1 for mixed use developments which include residential uses. The Rosenthal Avenue car park site has a direct relationship to the town centre and the development has been designed as a mixed use development which provides a transition between the predominantly retail and commercial uses within the town centre and the residential uses to the north west and west. As a result, the proposed FSR of 0.93:1 is considered to be appropriate in this context and is in any event consistent with the Council's own DCP for the subject site;

• [8] The proposed FSR and density will not result in any significant adverse traffic or parking impacts. A detailed Traffic Report supporting the proposed development was prepared by Masson Wilson Twiney, Traffic and Transport Consultants and was appended to the original Statement of Environmental Effects lodged with the DA. This report concluded that the proposal would have no adverse impacts on the performance of intersections in the locality or on the capacity of the local road network. It also concluded that on-site car parking will be provided in accordance with Council's requirements and access to and from the basement car park would be safe and convenient, with minimum conflict with pedestrian movements;

• [9] Due to the stepping down of the buildings on the site following the natural contours of the land, there will be no significant additional overshadowing of adjoining properties in mid winter as a result of the proposed FSR and density. None of the residential uses to the north and west of the site will be affected by the development. Only the rear of the properties which back on to Birdwood and Rosenthal Lanes, will be affected by the development at 3.00 pm in midwinter;

• [10] No other significant environmental impacts will flow from the non-compliance with the floor space ratio limit. The stepping down of the buildings across the site and the reduction in the bulk of the development by dividing the development into 5 separate buildings will ensure that the residential properties to the west and northwest will not be adversely impacted upon.

74 Mr Chambers who prepared the SEPP1 objections to FSR and residential density stated, [Exhibit C Appendix 10 p 7]:

Having regard to the above, it can be concluded that the proposed non-compliances do not undermine or frustrate the objectives of the 2(c) Residential zone or the presumed intent of the standard, being to ensure that the height of the proposal is consistent with the desired future character of the Lane Cove Village and its environs. The non-compliances also give rise to no significant adverse environmental impacts. Specifically:

• compliance with the FSR control of 0.75:1 is unreasonable in circumstances where Council has identified a restriction of 1:1 as a more appropriate control for the site, albeit in a DCP;

• non-compliance with the 0.75:1 control does not give rise to a development of unreasonable bulk and scale or to traffic generation which cannot be accommodated in the locality;

• compliance with the density standard of one dwelling per 175 square metres of site area is unreasonable on a site immediately proximate to the Lane Cove Village in respect of which Council has produced a site specific DCP which does not replicate this standard;

• non-compliance with the density standard of one dwelling per 175 square metres of site area produces a positive planning outcome in that it increases the supply of dwellings close to facilities and services.

75 Mr Wilson submitted that the SEPP1 objections to the FSR and residential density should be upheld.

76 Mr Pickles submitted otherwise and referred addressing the applicant’s first dot point in para 73 above, to the evidence of Mr Nangle, to the effect, that any residential development of this land would achieve the urban consolidation objectives of the State. I accept that submission, and that this is not a relevant consideration under SEPP1. It must be assumed that urban consolidation objectives have been taken into account in the drafting of the instrument, and that the FSR and residential density standards under the LCLEP have work to do. The applicant’s first objection does not apply in this case especially as the land is used only for car parking at present.

77 In respect of the second dot point Mr Pickles submitted, on the evidence of Mr Nangle, that any development of the land would make for a more compact city where presently the land is used for car parking alone. He submitted that the SEPP1 objection does not address the correct objectives, as the objectives in cl 2 LCLEPAm48 were not incorporated into the main planning instrument when it was gazetted. The primary objectives to be considered with the SEPP1 objection to the FSR standard, he submitted, are those that relate to the 2(c) zone under the LCLEP. He submitted that the applicant’s objection has not demonstrated why compliance with the FSR standard of 0.75:1 would be unreasonable or unnecessary in the circumstances of this case. I accept that submission.

78 Mr Pickles submitted in respect of the third dot point in para 73 above, that the land has been identified for ‘multi-unit housing’ or residential flat buildings but that does not demonstrate why 0.75:1 development could not achieve that objective as well.

79 Mr Pickles submitted in respect of the fourth and fifth dot points, that it is irrelevant to an objection to the FSR standard, to complain that it would be illogical and undesirable to require a density standard of one dwelling per 175m2 of site area and that to do so, would be inconsistent with the urban consolidation and ESD principles and market expectations. I accept that submission, as the residential density standard must be assumed by me to have a purpose.

80 In respect of the sixth dot point Mr Pickles submitted that the absence of environmental harm is not an argument on which to found a SEPP1 objection. He submitted that Mr Chambers falls into that trap. I accept that submission that, [Note: Hooker v Hornsby p 6]

…it is now established that it is not sufficient merely to point to what is described as an absence of environmental harm to found an objection.

81 The seventh dot point posited that as the land is adjacent to the Lane Cove village with an allowable FSR of 2:1, development on the land to a lesser FSR would create a transition between the commercial to the east and the residential to the west. Mr Pickles submitted that this ignores the fact that the residential area to the west is at a much lower density and the residential 2(c) zone would have created the same transition. He submitted that the applicant has not demonstrated why a FSR of 0.75:1 is unreasonable in the circumstances of this case.

82 The eighth dot point refers to the proposed density and to the fact that the proposal would not result in any adverse traffic and parking impacts. Again the absence of environmental harm is not sufficient to found an objection, Mr Pickles submitted. I accept that submission.

83 The ninth dot point is in the same vein as dot point eight, that there would not be any significant additional overshadowing.

84 Final point that there would be no other significant environmental impacts is again the related to the absence of environmental harm. In summary Mr Pickles submitted that on that basis of the points raised in support of the SEPP1 objection, “…the applicant couldn’t get through the SEPP1 gate”.

85 It is interesting to note that based on the drawings in Exhibit A, a rough calculation of the GFA of Block A, which measures around 35m long x 16m wide on two levels, is about 1,120m2. With a site area of some 6,670m2 this GFA represents a FSR of 0.17:1. If Block A were deleted from the proposal, the overall FSR would be reduced to around 0.76:1 or close to the standard of 0.75:1 under the LCLEP. The deletion of this block would bring the proposal more in line with the requirements of the RADCP that public open space should be 50% of the site area and located at the southern end of the site. There was no evidence to suggest that the proposal could not comply with the FSR standard of the LCLEP.

86 The underlying object of the FSR and dwelling density standards, in para 14 above, is to achieve development “…which is sympathetic to the neighbourhood in relation to… building mass”, and in order to achieve that end the density of development on the land would need to be consistent with that in the residential 2(c) zone and relate to the residential density nearby. This would ensure that the bulk of development of the land would also be sympathetic with that in the residential areas nearby. I am satisfied that as the proposal would exceed a FSR of 0.75:1 it would not be consistent with the objectives of the zone and would be to the detriment of the residential areas nearby.

87 I conclude that the SEPP1 objection to density in terms of FSR and site area per dwelling are not well founded and that compliance with these standards would not be unreasonable or unnecessary in the circumstances of this case. Thus the application would fail.

SEPP1 objection to height

88 There is no inconsistency in relation to the height standard under the LCLEP and RADCP, as both these instruments require development to conform to a maximum height limit of 8m. Thus there is not the same argument directed at this control as with the FSR standard. The proposal exceeds the height standard.

89 Mr Chambers on behalf of the applicant stated, [Note: Exhibit C Appendix 10]:

Whilst most of the buildings on the site breach the 8.0 metres height limit at some point, the breaches are for the most part relatively minor relating principally to the western sections of Blocks B, C, D, E and the uppermost part of Building F and reflecting the east to west fall of the site.
• The maximum height of the proposed development will be approximately 10.6 metres which arises on the western side of Block F;


• However, the overall scale of the development is 2 or 3 storeys across the site and is therefore consistent with the scale of existing buildings in the locality;


• The proposal steps down the site from Birdwood Lane to Rosenthal Avenue and follows the natural contours of the site;
• The non-compliances do not result in any significant environmental impact and the overall scale of the proposal, notwithstanding the non-compliance remains compatible with surrounding development;

• On a sloping ‘island’ site of 6,670 square metres non-compliances of the type illustrated on the plan in Attachment B will be largely indiscernible.

90 Mr Chambers stated that where there are non-compliances with the height standard there would not be any significant environmental impact and the buildings are not of unacceptable or unreasonable scale and would be otherwise compatible with the Lane Cove Village.

91 Mr Wilson submitted, as a consequence, compliance with the identified standards is considered to be unreasonable and unnecessary in the circumstances of the case. He urged the Court to uphold the SEPP1 objection to height.

92 The absence of environmental harm is not sufficient to found an SEPP1 objection. However, given the sloping nature of the land, it might be expected that some flexibility in the application of the height standard be entertained. The proposal would more than comply with the height standard on the uphill or eastern side of each block despite the breach on the downhill side. However, there might be other design solutions, involving further excavation of the basement or further stepping of the development that would avoid the breach of the height limit. No evidence was given as to whether this would be possible.

93 The underlying object of the height standard would be, as in para 14 above, to ensure that development on the land would be “…sympathetic to the neighbourhood in relation to… building mass”, and compatible with the residential areas nearby. It appears that this object might be satisfied, in the circumstances of this case. However, if the proposal were to more closely relate to the 8m-height limit especially near the residential areas in Rosenthal Avenue, a more sympathetic relationship might be achieved.

94 In that absence of evidence to the contrary, I accept the evidence of Mr Chambers that the flexibility under SEPP1 might be applied to the height standard. It is not necessary for me to make a determination in this regard as the application fails in other respects.

95 As I am proposing to refuse the application it is not necessary for me to refer the application to the Director of the Department of Infrastructure, Planning and Natural Resources, (DIPNR) for concurrence under s 7 of SEPP1. I recognise also that under s 39 of the Land and Environment Court Act 1979, the Court can assume the delegation if required.

Internal amenity: privacy and overshadowing being a function of the breach of the height limit and density on the land and although consistent with the DCP exceeds that of the LEP and exceeds the density of 1 per 175 persons per square metre;

96 The rule of thumb of the Residential Flat Design Code (Code) would require living rooms for at least 70% of apartments in a development to receive a minimum of three hours of direct sunlight between 9.00am and 3.00pm in midwinter.

97 Messrs Nangle and Chambers agreed that 56% of the living rooms of the proposed dwelling units would receive three hours of ‘effective’ sunlight between the hours of 9.00am and 3.00pm in midwinter, [Note: Exhibit K p 2]. Effective sunlight is that sunlight that falls on a window at an angle sufficient to be useful internally and makes allowance for reflection of glazing and depth of window reveals as required under Technical Bulletin No 13-Sunlight indicators published in 1978 by the NSW Planning and Environment Commission, [Note: Exhibit 9 p 14]. The angle above which the sunlight is useful is shown in that document as 22.5 degrees. I am satisfied that it is appropriate to assess ‘effective’ sunlight in that way, in the circumstances of this case, as in some instances the proposed glass line is setback and flanked by fin walls, [Note: Exhibit A plans].

98 Many of the living rooms of the proposed dwelling units face almost due east or due west, given the orientation of the land and the design. Theoretically, in midwinter the ‘effective’ sunlight falling on an east-facing window of a living room after 9.00 and on a west facing window before 3.00pm in midwinter is a little more than one and one half hours on each face.

99 Fortunately, the proposed west-facing dwelling units are oriented slightly to the north of west and in the northern sector of the land are canted even further towards the north. As a result the west facing dwelling units would receive about one and a quarter hours of sunlight more than a dwelling unit that faces due west. Thus the proposed western dwelling units in the northern sector of the land would be likely to receive almost three hours of ‘effective’ sunlight before 3.00pm in midwinter. However, the eastern facing dwelling units to the north of the proposal would receive a similar amount of sunlight less than a dwelling unit facing due east. The south facing units would receive none.

100 In this case, with a FSR in the range of 0.75:1 and 1:1 it should be possible to provide a greater number of dwelling units with north facing living rooms than proposed by careful design. However, as suggested by Mr Nangle, the higher the density the more difficult this becomes. The applicant may need to reduce the density to around 0.75:1 in order to achieve a greater level of internal amenity given the north south long axis of the land. However, much depends on the design. It is noted that a lower density is suggested by the site area per dwelling control of 1 dwelling unit per 175m2 of site area when compared with the density in FSR. The proposal is for a residential density of 1:101m2, but the size of the dwelling unit needs also to be taken into consideration.

101 I am satisfied that the proposal does not provide the minimum 70% of the dwelling units with the required amount of sunlight in living rooms as suggested by the rule of thumb and as a result would not meet reasonable internal amenity requirements. This was the evidence of Mr Nangle, which I accept.

Quantum of public open space: and on that hangs the issue of security and concern about the use of the central spine and whether open during the day;

102 The applicant maintains that there would be provided 45% of the site area as public open space. Mr Nangle, for the council, suggested that the figure would be more in the realm of 25% of the site area. The difference between these two extremes, as I understand it, is that the applicant included a gated section of the spine space between the two rows of buildings. Mr Nangle was of the opinion that this space does not have the character of public open space, as it is more useful for visitors to access the private dwellings than for use by the public. Also, the council says that as this area would be gated and closed at night, it would not be in the character of public open space and would be likely to be annexed by the prospective private residents to private use.

103 The concerned residents, who gave evidence, also pointed to the deficiency of public open space, to its character and to the importance of providing the required 50% public open space in order to maintain the ‘village’ character of the area and to connect with the plaza in the closed section of Burns Bay Road to the south of the land.

104 I accept that evidence, Mr Nangle’s evidence and the submissions of Mr Pickles in this regard. I would refuse the application for reason of lack of public open space and non-compliance with the requirements of the RADCP that 50% of the site area is to be given over to public open space.

105 If Block A were deleted more public open space would be provided on the southern part of the land and more meaningful public open space would be included within the proposal and not around the perimeter as proposed.

Waste management;

106 The parties agreed that this matter could be addressed by conditions should the Court be of a mind to grant consent to the application. I accept that this issue has been resolved.

107 For the above reasons, the appeal is dismissed.

Orders

108 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 204/01, originally lodged with the respondent council on 21 June 2001, for a mixed use development, comprising ninety-three (93) residential flats, eleven (11) retail suites or shops, a public plaza, three levels of basement car parking and open space, and subsequently amended, at Nos. 2-20 Rosenthal Avenue, Lane Cove, on the Rosenthal Avenue car park is refused consent.

3. The exhibits with the exception of Exhibits A (A3 copy of plans), 5, 7 and 9 are returned.

S J Watts

sw