St Jude Property Investments Pty Limited v City of Canada Bay Council
[2007] NSWLEC 317
•4 June 2007
Land and Environment Court
of New South Wales
CITATION: St Jude Property Investments Pty Limited v City Of Canada Bay Council [2007] NSWLEC 317 PARTIES: APPLICANT:
St Jude Property Investments Pty Limited
RESPONDENT:
City Of Canada Bay CouncilFILE NUMBER(S): 10214 of 2007 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Existing and future character of surrounding area.
Potential impacts on acoustic and visual privacy of future development.
Effect on bulk, height and scale of approved development.LEGISLATION CITED: Concord Planning Scheme Ordinance 1969,(CPSO)
Development Control Plan No. 35 - Development in 10(a) Mixed Use Zones, Mortlake Point, Mortlake, (DCP35)
Concord Local Environmental Plan No. 103, (DCP103)
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 and its Development Control Plan, (SREPSHC)
Environmental Planning and Assessment Act 1979, ss79C and 96DATES OF HEARING: 31/05/2007 and 04/06/2007 EX TEMPORE JUDGMENT DATE: 4 June 2007 LEGAL REPRESENTATIVES: APPLICANT:
Ms S M Hill, solicitor
SOLICITORS:
Susan Hill & AssociatesRESPONDENT:
Mr P M Jackson, solicitor
SOLICITORS:
Pike Pike & Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
4 June 2007
10214 of 2007 - St Jude Property Investments Pty Limited v City Of Canada Bay Council
JUDGMENT
1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the decision of the City Of Canada Bay Council (the council) to refuse a modification application to change Development Consent No. 37/2003 which originally granted consent for the construction of two (2) x four (4) storey residential flat buildings containing 16 x 3 bedroom units with 30 parking spaces in a basement level and associated landscaping at Lot 101, DP 856989, being No 8 Bennett Street, Mortlake, NSW 2137.
2 I have concluded that the orders sought by the parties may be endorsed when the application is considered under the heads of determination of the Act.
The land
3 The land is situated on the western side of Bennett Street, Mortlake between Northcote and Edwin Streets. The currently vacant land has a rear boundary adjoins Majors Bay, which is part of the Parramatta River system.
4 A two-storey brick and metal roof factory building used as joinery is located immediately to the south of the subject land at Nos 4 - 6 Bennett Street. A two-storey brick and metal roof factory building is located immediately to the north of the site at Nos 16 - 18 Bennett Street.
5 A large, disused and derelict factory complex is located to the east of the land on the opposite side of Bennett Street. Houses are located further to the southeast in Edwin Street.
6 The land is located in a predominantly industrial area but one, which is in transition to a mixed residential/commercial area. Several multi-unit residential developments have been approved in the vicinity of the subject land in Edwin Street, Bennett Street, Hilly Street, Bertram Street and McDonald Street, Mortlake.
Relevant planning controls
Concord Planning Scheme Ordinance 1969, (CPSO)
7 Under the provisions of the CPSO the land is zoned and the proposal is permissible with consent. The CPSO was amended by the gazettal on 31 March 2000, of Concord Local Environmental Plan No. 114, (CLEP114).
8 The CLEP114 rezoned certain land in Mortlake from part Industrial General 4(a), part Industrial Light 4(b) and part Residential 2(b) to 10(a) Mixed Use. The approved Residential Flat Buildings are permissible development under the CPSO as amended by CLEP114, with the consent of the council or the Court on appeal.
Development Control Plan No. 35 - Development in 10(a) Mixed Use Zones, Mortlake Point, Mortlake, (DCP35)
9 DCP35 applies to the subject land and the approved residential flat development on the land.
Concord Local Environmental Plan No. 103, (DCP103)
10 Under DCP103 the stand of mangroves along the Majors Bay boundary to the rear of the site are listed as a heritage item.
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 and its Development Control Plan, (SREPSHC)
11 The SREPSHC apply to the subject land. There are no other environmental planning instruments or development control plans applicable.
12 The subject site is also affected by the draft City of Canada Bay Local Environmental Plan which was placed on public exhibition from 6 February 2007 to 30 March 2007, and which is a matter for consideration under Section 79C of the Environmental Planning and Assessment Act 1979.
13 The council has also adopted the draft City of Canada Bay Development Control Plan, and this has been on public exhibition in conjunction with the draft LEP for the City of Canada Bay. Part 6 of the draft DCP contains controls for detached dual occupancies, multi dwelling housing and residential flat buildings. Control C12 in Part 6.3.4 of the draft DCP prohibits the use of trafficable outdoor spaces on the uppermost rooftop of a building for roof decks, terraces, patios, gardens and the like.
The proposal and its history
14 Development application No 37/2003 was lodged with the respondent council on 9 December 2005 to modify a development application to erect a two (2) x four (4) storey residential flat buildings containing 16 x 3 bedroom units with 30 parking spaces in a basement level and associated landscaping on the land.
15 On 9 January 2007, the applicant lodged an application under Section 96(1A) of the Environmental Planning and Assessment Act 1979 to modify Development Consent No. 37/2003 to include the following works:
· Conversion of the roof area to trafficable roof terraces for each apartment located immediately below at the third level - that is, Units 7, 8, 15 and 16;
· Construction of external spiral stairs on the approved balconies of Units 7, 8, 15 and 16 providing access to each of the proposed roof terraces; and
· Change the previously approved roof design of both residential flat buildings to provide a masonry wall extension to the top of each building facade so that a 850mm deep planter bed is provided around the perimeter of each building with a metal handrail on top of the masonry wall. This masonry wall extension is designed to match the external masonry wall of the rest of the building.
Notification
16 The modification application was notified from 16 January 2007 to 30 January 2007, to nearby owners and occupants and the council received one submission.
17 The submission raised no objections to the concept of roof top terraces for the residential flat development as proposed under the Section 96 modification application but raised concerns with the proposed spiral staircases on the balconies and the future potential for shade and other structures to be constructed on the roof terraces likely to block views and reduce privacy.
18 The council wrote to the applicant on 25 January 2007 raising the following issues with the proposed roof terraces:
· The proposed roof terraces were likely to set an undesirable precedent within the local area; and
· The proposed roof terraces would result in acoustic and visual privacy impacts; and
· The proposed roof terraces are considered to be inconsistent with the future character of the area.
19 The council wrote to the applicant and requested the applicant to withdraw, as it was unlikely that the council would support the application. The applicant’s solicitor wrote to the council on 7 February 2007 advising that the applicant would not be withdrawing the application and that if the council refused the application or failed to determine the application within 40 days, then an appeal would be filed with the Court.
20 A meeting was held with the applicant and senior council staff on 17 February 2007 to discuss the Section 96(1A) modification application. At this meeting, the applicant was advised that the council would not support the application for the reasons (cited above) detailed in the council’s letter of 25 January 2007. It was also noted during this meeting that the Statement of Environmental Effects submitted with the application assessed it as a modification under Section 96(2) and not 96(1A) and that the application should be amended accordingly should the applicant wish to pursue the matter.
The council’s decision
21 The applicant took no further action. The council under delegated authority refused the Section 96 Modification on 15 February 2007 for the following reasons:
1. The application is considered unsatisfactory pursuant to Section 79C (1)(b) of the Environmental Planning and Assessment Act 1979 as the development is likely to result in unsatisfactory adverse overlooking and noise impacts.
2. The application is considered unsatisfactory under Section 79C (1)(b) of the Environmental Planning and Assessment Act 1979 as the external stairs and rooftop terraces are likely to create an unacceptable precedent in the local area.
3. The application is considered unsatisfactory under Section 79C (1)(b) of the Environmental Planning and Assessment Act 1979 as the rooftop terraces will be inconsistent with the future character of the area.
4. The application is considered unsatisfactory under Section 79C (1)(a)(ii) of the Environmental Planning and Assessment Act 1979 as it does not satisfy Part 6.3.4, Clause C12 (Use of rooftops of buildings) of the City of Canada Bay Draft Development Control Plan 2006.
5. The application is considered unsatisfactory under Section 79C (1)(b) of the Environmental Planning and Assessment Act 1979 as it will alter the approved design of the building resulting in an architectural solution which is less interesting than the approved design, and which unnecessarily adds to the bulk, scale and height of the previously approved building.
6. The application is considered unsatisfactory under Section 79C(1)(d) of the Environmental Planning and Assessment Act 1979 by virtue of the public submission received it cannot be said that the development is in the public interest.
The hearing
22 The appeal was filed on 15 March 2007 against the council’s refusal of the application.
23 At the hearing the court heard evidence on behalf of the respondent council from Ms N Butler, Team Leader Statutory Planning Services at Concord Council.
24 On behalf of the applicant Mr A Betros, consultant town planner, gave evidence.
25 Ms Butler and Mr Betros prepared a joint statement dated 24 May 2007. Ms Butler, also prepared the statement of basic facts dated 5 April 2007.
The issues
26 On 9 May 2007 the council filed an amended statement of issues.
1. The application does not satisfy the objectives contained in Clause R 1 under the Privacy section of Development Control Plan No. 35 - Development in the Mixed Use Zone at Mortlake Point, Mortlake.
- Particulars:
The location, design and layout of the proposed roof terraces is likely to create visual and acoustic privacy impacts for habitable rooms and private open space of existing and proposed multi-unit developments in the vicinity of the subject site. The roof terraces are of substantial area and will enable significant numbers of people to utilise the terraces resulting in potential visual and acoustic privacy problems for future residents of the locality.
Environmental Planning and Assessment Act 1979 with regard to the environmental impacts of the proposal on the built environment.
- Particulars:
The proposed roof top terraces are likely to adversely impact on the existing and future character of the built environment of the locality as the terraces will unnecessarily add to the bulk, height and scale of the approved building, and will set an undesirable precedent for future multi-unit development in the Mortlake Point area.
3 Circumstances of the case and the public interest. Issues raised by objectors including:
(a) The proposed spiral staircase access points to the roof terraces are not integrated into the design of the building and will therefore detract from the facade of the building. The access stairs should be contained within the outer walls of the proposed building.
(b) Shade structures and other elements are likely to be erected on the roof terraces should they be approved.
27 The following emerged as the salient issues:
· Existing and future character of surrounding area.
· Potential impacts on acoustic and visual privacy of future development.
· Effect on bulk, height and scale of approved development.
The evidence and findings
28 Mr Betros and Ms Butler jointly stated:
- 2.1 Existing and future character of surrounding area
The experts agree that the area immediately surrounding the subject site is industrial in nature and that the current industrial activities in this area are displaying obvious signs of economic decline.
The experts agree that the Mortlake Point area is currently zoned 10(a) Mixed Use under the provisions of the Concord Planning Scheme 1969 and will be zoned General Residential R1 under the draft Local Environmental Plan for the City of Canada Bay. Public Exhibition of the draft LEP was completed on 30 March 2007. Under both of these zonings, residential flat development is and will be permissible.
The experts agree that Concord Local Environmental Plan No. 114, gazetted on 31 March 2000, amended the Concord Planning Scheme and affects the majority of the Mortlake Point area. One of the aims, objectives, policies and strategies listed in Clause 2(b) of the LEP is to 'encourage the orderly and economic development of the land to which this plan applies far a range of residential, industrial, retail and commercial uses by providing clear objectives and controls for the use and development of that land.
The experts agree that the Mortlake Point area is likely to continue to be redeveloped for a mix of residential and commercial development and that industrial development will continue to be phased out from the area.
2.2 Potential impacts on acoustic and visual privacy of future development:
The experts agree on the following matters:
· The proposed root top - terrace to Unit 7 will have trafficable area of 83.5sqm.
· The proposed root top terrace to Unit 8 will have trafficable area of 80.4sqm.
· The proposed roof top terrace to Unit T 5 will have trafficable area of 82.3sqm.
- The proposed roof top terrace to Unit 16 will have a total trafficable area of 98sqm.
Note: the above areas exclude all proposed planter boxes and any access to the roof terraces including landing areas at the top of each spiral staircase.
That the proposed areas of the terraces are excessive and should be reduced and set In further from the outer walls of the approved buildings to reduce the visual and acoustic privacy impacts of the terraces.
The terraces should be restricted to a trafficable area of no more than 50sqm each, and that the terraces should be set in a minimum of 2.0m from the outer face of the building walls where these walls adjoin side, rear or front boundaries but that the terraces could have a minimum setback of 1.0m where they adjoin each other in the centre of the buildings. The 1.0m setback is considered appropriate as the terraces ore already internally separated by the stairways and access corridors to each building.
That planter beds with a minimum soil planter bed width of 1.5 metres (taken from the inside of the parapet wall) should also be provided around the roof terrace areas with the exception of the internal sides of the terraces adjacent to the access corridors and stairwells.
2.3 Effect on bulk, height and scale of approved development:
The experts agree on the following matters:
· The previously approved roof design for the original residential flat buildings involved a skillion-style roof with extended eaves.
· This roof form has been replaced with a flat roof with extended masonry parapet with metal handrail atop under the current Section 96 Modification.
· The raised masonry parapet for the proposed roof terraces will marginally increase the height of the previously approved buildings and will further emphasise the bulk and scale of the buildings. This impact would be mitigated by setting the parapet wall in from the outer wall of the building… and the inclusion of planter beds on the roof top terraces...
29 Mr Jackson confirmed that the only objector had been notified of the hearing before the Court and that the objector when shown the terms of the consent orders did not wish to make any further representations.
30 I accept the parties have reached agreement in respect of roof top deck of both residential flat buildings A and B and there are no outstanding issues in respect of the s 96 modification and the appeal is upheld.
Conditions
31 The parties agreed on conditions of consent and they are contained in Exhibit 6 as amended during the hearing.
Consent orders
32 The consent orders are:
1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is upheld.
2. The s 96(2) application lodged with the respondent council on 9 December 2005, to modify development consent No DA 37/2003 to erect a two (2) x four (4) storey residential flat buildings containing 16 x 3 bedroom units with 30 car parking spaces in a basement level and associated landscaping at Lot 101, DP 856989, being No 8 Bennett Street, Mortlake, NSW 2137, is approved subject to Conditions 1 to 110 in Annexure A.
3. Condition 1 of the consent is deleted and replaced with a new Condition 1 and Condition 11 that refers to amended plans is also amended.
4. The exhibits except for Exhibits A, B, C, D, 3,4 and 6 are returned.
S J Watts
Commissioner of the Court
sw
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 at
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