St Judes Property Investments v Canada Bay Council

[2004] NSWLEC 464

Land and Environment Court

of New South Wales

CITATION:	St Judes Property Investments v Canada Bay Council [2004] NSWLEC 464
PARTIES:	APPLICANT St Judes Property Investments Pty Limited v Canada Bay City Council
FILE NUMBER(S):	10485 of 2004
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of existing industrial building erection of residential flat building SEPP 1 objection to height and density streetscape/character traffic/parking design soil contamination
LEGISLATION CITED:	Concord Planning Scheme Ordinance State Environmental Planning Policy No. 65 State Environmental Planning Policy No.55 Environmental Planning and Assessment Act 1979
CASES CITED:	Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
DATES OF HEARING:	21/07/08, 12/08/04
DATE OF JUDGMENT:	08/26/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms S Hill, solicitor SOLICITORS Susan Hill & Associates Lawyers RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike, Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner G T Brown

26 August 2004

10485 of 2004 St Judes Property Investments Pty Limited v Canada Bay City Council

JUDGMENT

1 This is an appeal against the refusal by Canada Bay City Council (the council) of Development Application 635/03 for the demolition of an existing factory building and the construction of a residential flat building at 30-34 Hilly St, Mortlake (the subject site).

2 I record that a view of the subject site and surrounding areas was undertaken on the morning of the first day of the hearing with representatives from both parties. A number of local residents also provided their evidence at this time.

3 For the reasons set out in this judgment I have concluded that the appeal should be upheld and development consent granted subject to conditions.

The subject site

4 The subject site is generally rectangular in shape with an eastern frontage to Hilly St and a rear western boundary of 73.15 m, a northern side boundary of 56.83 m and a southern side boundary of 58.52 m, giving a total area of 4218.7 sq m. It has a fall of some 3.1 m from the Hilly St frontage to the rear boundary that adjoins Majors Bay. Some mature landscaping is located along the Hilly Rd and rear setback areas.

5 Development in the immediate area consists predominantly of residential development with the building form the varying from two-storey townhouses to residential flat building style development up to five storeys in height. The wider area contains a mix of residential and industrial developments.

The proposal

6 The proposal seeks the demolition of the existing factory building and the construction of a residential flat building consisting of two rows of buildings running parallel to Hilly St. The building with a frontage to Hilly St has a height of 3/4 storeys and the building with a frontage to Majors Bay is 2 storeys with a roof viewing area. The overall development provides for 30 dwellings consisting of 8 x 3 bedroom townhouses, 2 x 3 bedroom maisonettes, 7 x 2 bedroom maisonettes, 5 x 3 bedroom apartments and 8 x 2 bedroom apartments. A 2 level basement car park provides for 51 car parking spaces, storage areas and waste management facilities. Access from the basement car park to the dwellings is provided by three separate lifts.

7 During the hearing, leave was granted for the re advertising of plans that addressed a number of inconsistencies in the plans. The further public submissions were provided to the Court prior to the conclusion of the hearing.

Relevant planning controls

8 The subject site is zoned 10(a) Mixed Use under the provisions of the Concord Planning Scheme Ordinance (the Ordinance). The proposed use is permissible within the zone as a "residential flat building". Clause 25A provides requirements for the development of land identified on Acid Sulphate Soils Planning Maps, cl 42AA identifies the subject site as requiring a public right of way to provide access to the foreshore of Majors Bay and cl 41J(5) provides requirements for foreshore building lines.

9 Clause 41L of the Ordinance provides development standards for residential development. The clause states that building height shall not exceed three storeys or 12 m in height (cl 41L(2)), the density shall not exceed 35 dwellings per hectare (cl 41L(3)) and the floor space ratio shall not exceed 0.75: 1 (cl 41L(4)). There was agreement that the proposed development satisfies the floor space ratio development standard.

10 Concord Development Control Plan No. 35-Development in 10(a) Mixed-Use Zone Mortlake Point, Mortlake (DCP 35) provides more detailed controls development at Mortlake Point. Relevantly, Part C addresses built form/architectural character, building and scale, streetscape and public domain, and views and vistas.

11 State Environmental Planning Policy No. 65-Design of Residential Flat Buildings (SEPP 65) applies to the proposed development by way of cl 4. Clause 30(2) requires a consent authority to take into consideration the Design Quality Principles in the Part 2 and the publication Residential Flat Design Code.

12 State Environmental Planning Policy No.55-Remediation of Land (SEPP 55) applies to the subject site. Consent must not be granted unless the Court has considered whether the land is contaminated, and if the land is contaminated, is satisfied that the land is suitable in its contaminated state or will be suitable after remediation for the proposed development. In this case, the parties agreed that any remediation could be appropriately dealt with by way of conditions of approval.

13 State Environmental Planning Policy No.56-Sydney Harbour Foreshores and Tributaries and Sydney Regional Environmental Planning No. 22-Parramatta River apply to the subject site although it was agreed that these documents do not raise any issues for the proposed development.

The issues

14 The council filed an Amended Statement of Issues containing 11 separate issues. Prior to the hearing, the applicant and the council agreed to Court appointed experts in the areas of town planning, urban design, traffic and parking, and site contamination. The respective Court appointed experts were Mr Geoff Goodyer, Professor John Toon, Mr Chris Hallam and Mr Edward Johnstone. Additionally, leave was granted to the applicant for their town planner/urban designer Mr Terry Byrnes to give oral evidence.

15 The issues of traffic and parking and site contamination were found by the Court appointed experts to be satisfactorily addressed through the submission of amended planes or by way of appropriately worded conditions. The council accepted the conclusions of the Court appointed experts in these areas. Following conferencing between Mr Goodyer, Professor Toon and Mr Byrnes, the town planning and urban design issues were refined. The remaining issues can be conveniently grouped into the following main areas:

1. whether the State Environmental Planning Policy No.1-Development Standards (SEPP 1) objections to the building height and density are well founded and,
2. whether the proposed development provides an appropriate street character, particularly considering the through site link location, the adequacy of the modulation of the street façade and the treatment of the top floor.

16 The Amended Statement of Issues also contains issues by resident objectors, including overshadowing, loss of privacy, parking and traffic, and potential sewage overflow. Some of these issues are addressed as part of the consideration of the above issues and some are addressed separately. These issues were not specifically identified by the council or were found to be acceptable by the Court appointed experts.

SEPP 1 objections

17 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state:

3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

18 This question also asks whether compliance with the development standard would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 (EPA Act). These objects state:

5. The objects of this Act are:
to encourage –
(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
(ii) the promotion and coordination of the orderly and economic use and development of land.

19 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

Building height

20 Clause 41L(2) states:

Development for the purposes of residential development shall not exceed three (3) storeys or 12 m in height, "height" being defined as the vertical distance measured from natural ground level and the uppermost point of the roof.

21 Mr Byrnes and Mr Goodyer differed over whether the development satisfies the building height requirement. There was agreement that the proposal exceeded the three-storey limit in some locations although Mr Byrnes states that the building satisfies the 12 m height requirement. Mr Goodyer maintains that there is a small breach of the 12 m height requirement. While Clause 41L(2) is expressed in the alternative, i.e., development must not be higher than three storeys or 12 m, Mr Goodyer notes that a SEPP 1 objection has been prepared if the Court considers that both standards need to be satisfied

22 The difference in the 12 m height measurement relates to the point where the height is measured. Both use the same survey plan but interpolate the relative level at the point where the maximum height is measured by using different spot levels. Even if the more conservative assessment by Mr Goodyer is used, the breach is extremely small (as indicated by Mr Goodyer on the architectural plans) and is located at the stairwell and at the change of level between two sections of the eastern building. To overcome any inconsistency, the applicant offered a condition restricting the height of the building to a relative level corresponding to the maximum 12 m high.

23 I accept that the height requirement in cl 41L(2) is satisfied and that a SEPP 1 objection is not required. The clause requires the height to satisfy either the 12 m height requirement or three-storey requirement. There was no dispute that the building complies (or can be easily made to comply) with the 12 m height requirement.

Density

24 Clause 41L(3) states:

Development for the purposes of residential development shall not exceed 35 dwellings per hectare.

25 There was general agreement that the proposed development provides a density of approximately 71 dwellings per hectare.

26 The applicant provided a SEPP 1 objection to the density standard to show why strict compliance with the development standard was unreasonable or unnecessary in this instance. The objection acknowledges that no specific objectives are provided within the Ordinance. It assumes the standard seeks to control the intensity of development having regard to traffic generation, built form and capacity of the existing infrastructure. While saying this, it is argued that the density standard is not an accurate measure of built form and, in fact contravenes the intention implied by the zoning of the subject site.

27 The SEPP 1 objection states the Ordinance encourages medium density residential development at a floor space ratio of 0.75: 1. This standard is at odds and is incompatible with the 35 dwellings per hectare density control. At a density of 35 dwellings per hectare and a floor space ratio of 0.75: 1, the subject site would produce dwellings around 280 sq m in floor area. This form of dwellings is more characteristic of a single or two-storey dwelling located on its own block of land. It does not represent the type of building form encouraged by the zoning

28 The SEPP 1 objection further states that the development standard is inconsistent with the objectives of the EPA Act and the objectives of the NSW Government policy to optimise opportunities to increase residential densities in existing areas well serviced by existing public infrastructure. Additionally, the development will not give rise to any adverse environmental impacts and will not cause any adverse impacts to the existing infrastructure.

29 Mr Goodyer accepts the underlying objectives set out in the SEPP 1 objection but would include an objective relating the built form to the character of the area. In his opinion, there is a clear nexus between built form and residential character on one hand and density on the other. He identifies different developments with the same zoning near the subject site and with densities ranging from 28 dwellings per hectare (opposite the subject site) to 140 dwellings per hectare (38 Hilly Street). In his assessment, developments with a densities of less than 40 dwellings per hectare display a character that is typical of two-storey townhouse development whereas developments with a density over 130 dwellings per hectare display a character of multi-storey residential flat building development. Some developments also display a mixed character with a two-storey townhouse character at the street frontage but with perceptible residential flat building elements towards the rear (36 Hilly Street).

30 Mr Goodyer rejects the proposition that the proposal will not give rise to any adverse environment impact as it is an inappropriate consideration for a SEPP 1 objection. He also considers that the density standard is not inconsistent with the State Government Urban Consolidation Policy as it represents a standard seen as appropriate by the council. Mr Goodyer is also not aware that the existing infrastructure can sustain the density of development proposed in the application.

31 For these reasons, Mr Goodyer concludes that the SEPP 1 objection is not well founded.

32 Accepting the underlying objectives are those set out in the SEPP 1 objection and amended by Mr Goodyer, I am not convinced that the proposed development is inconsistent with these underlying objectives that the SEPP 1 objection could be seen as not well founded.

33 There is no doubt that development standards relating to height, floor space ratio and density do not work together to achieve a consistent form of development or built form. Mr Goodyers assessment that any attempt to satisfy all development standards would result in dwellings of some 280 sq m in floor area highlights the inconsistency between these development standards. The site view and the evidence of Mr Goodyer highlights the range of building forms that have resulted from the incompatible development standards.

34 The Court was provided with details of recent approvals in the general area (Exhibit 14) and it is clear that while the council has generally applied the floor space ratio and height requirements in the Ordinance the density requirement has been given significantly less weight in any assessment. This has resulted in the range of building forms described by Mr Goodyer. Even though this may not have been the intention, this range of building form now represents the character of the area in the vicinity of the subject site. For this reason, I accept that the proposed development has a form that is consistent with some, but not all, development in the general area.

35 Mr Goodyer also sees the density standard as a means of limiting traffic generation. He relies on the council's Section 94 Contribution Plan that identifies a future population for the Concord Area, including the Hilly Street locality. While no details are provided as to the basis for this projection, Mr Goodyer states it is not unreasonable to assume that it relates to the density standard in the Ordinance.

36 He also relies on the Mortlake Point Planning Study of July 1999 that refers to an earlier Concord Residential Strategy in 1997 that recommends a dwelling density of 35 dwellings per hectare (p 25) as this density is considered to sufficiently allow for cumulative impacts of traffic generation. The Mortlake Point Planning Study also provides specific details on the potential impact of any traffic generated on the local road system (p 52). Potential traffic generation was assessed on densities of 35, 40 and 45 dwellings per hectare with the conclusion that residential development would produce a net reduction in peak traffic generation when compared with the existing industrial situation. The suggested planning controls (p 73) recommend a maximum density of 35 dwellings per hectare although where this density is to be exceeded, the opportunity is provided for a traffic assessment to be submitted to council that proves the development will not cause additional impact on the road system of Mortlake Point.

37 In considering the issue of traffic generation and the impact on the local road system, the Court had the benefit of a report from Mr Chris Hallam, the Court appointed traffic expert. This particular issue was also a matter raised by most local residents who provided their comments to the council and also to the Court.

38 Using the Roads and Traffic Authority generation rates in Guide to Traffic Generating Developments, Mr Hallam calculates that a factory of the size on the subject site would generate 120 vehicle daily trips and a warehouse would generate 96 vehicle daily trips. Peak hour vehicle trips are 24 vehicles per hour and 12 vehicles per hour respectively. The proposed residential development would generate between 134 and 171 vehicle trips per day with peak hour vehicle trips between 13 and 17 vehicles per hour.

39 Based on these figures, Mr Hallam states that the average daily traffic generation of a factory is a little less than that for the proposed residential development although the peak hour traffic generation of a factory is greater. The figures for warehouse use are generally less than those for the proposed residential use. As the concerns expressed by residents generally concentrate on peak periods, the residential traffic generation would be no greater than that for a factory use of the site. Overall, Mr Hallam concludes that the issues relating to traffic and parking are not of sufficient weight to justify the refusal of development consent.

40 The conclusions reached by Mr Hallam are consistent with the assumptions in the Mortlake Point Planning Study where it was found that there was an overall net reduction in peak period traffic from residential development when compared to the existing industrial situation based on 45 dwellings per hectare. It was however also found that the net reduction in traffic generation was unlikely to be sustained at higher densities. Notwithstanding this, I accept the site specific assessment by Mr Hallam that found a likely reduced level of traffic generation in the critical peak periods.

41 For this reason, I accept that having regard to traffic generation, the intensity of development is not inconsistent with this underlying objective of the density standard. In my view, the assessment carried out by Mr Hallam should be preferred over the more general and less relevant projections in the council's Section 94 Contribution Plan. In coming to this conclusion I am also mindful that the approvals granted by the council where the density significantly exceeds the Ordinance requirement, postdate the Mortlake Point Planning Study.

42 While not raised as an issue by the council, a number of residents raised concern over the capacity of the existing sewerage system to accommodate the increased density. I note that the council's without prejudice conditions of consent require the approval of the Sydney Water for the provision of water and disposal of sewer. In the absence of any evidence to suggest that this approval would not be forthcoming I accept that the condition adequately addresses the provision of water and disposal of sewerage for the subject site.

43 In considering the matters set out in Winten, I accept that the proposed development is not inconsistent with the underlying objectives of the density development standard and consequently strict compliance with the standard is unreasonable and unnecessary in this case and that the SEPP 1 objection is well founded.

Streetscape and character

44 The issue between Mr Byrnes and Professor Toon and Mr Goodyer centred on the impact on the streetscape and character when viewed from Hilly Street. There was no issue on the presentation to Majors Bay. Amendments were made to the proposal prior to and during the hearing that addressed some of the concerns of Professor Toon and Mr Goodyer and also some discrepancies in the plans. While not totally satisfying these concerns the amendments had the effect of limiting the areas of dispute. The amendments were also readvertised for public comment although no new substantive issues arose from the readvertising.

45 Professor Toon and Mr Goodyer state that the upper level should be set back to reduce the prominence of the building in the streetscape. Additionally, the height of the building where it joins the properties to the north and south should also be limited to three storeys. The perception of height and bulk when viewed from Hilly Street is sufficient for Professor Toon and Mr Goodyer to suggest that the development application should be refused.

46 Professor Toon also indicates that the through site link would be more appropriately located at the southern end of the subject site rather than the northern end. Professor Toon also raises concern over the modulation of the facade by suggesting that there should be deeper recesses to create more shadowing and consequently more interest in the streetscape, although neither of these matters were seen as determinative.

47 Mr Byrnes considers that the proposal fits comfortably in the streetscape and is not outstandingly different to other developments in the immediate vicinity.

48 The Ordinance provides little guidance apart from the numerical controls in cl 41L. DCP 35 provides objectives and specific requirements for specific design elements.

49 Under the heading of Build Form/Architectural Character, development is to respond to the natural and built environment of the Mortlake peninsula (O1) and encourage built forms that improve the public domain by maximising the relationship of new development with street frontages (O4). Specific requirements provide for facades to be highly articulated (R1), traditional roof forms (R2) and the incorporation of regular bays or recesses, including windows and balconies (R3, R4 and R5).

50 Under the heading of the Building Height and Scale, development is to provide appropriate scale and compatibility with the Mortlake streetscape (O1) and where appropriate adopt the predominant scale of adjoining development and have similar bulk and mass, taking into account the size and shape of the lot with taller buildings or elements of one building placed on the higher parts of the site (R3).

51 Under the heading of Streetscape and Public Domain, development is to make a positive contribution to the streetscape (O2), comply with the specific recommendations in the appropriate Urban Character Analysis (R1) and utilise appropriate landscaping (R3 and R4)

52 SEPP 65 also provides further matters to be considered. Relevantly, Principe1: Context states, "good design responds and contributes to its context… Responding to context involves identifying the desirable elements of a locations current character….". Principle 2: Scale states, "good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings…. Establishing an appropriate scale requires a considered response to the scale of existing development". Principle 3: Built form states "good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building height and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks,…. "

53 Considering the concerns of Professor Toon and Mr Goodyer in light of the relevant requirements in DCP 35 and SEPP 65, I am not persuaded that their concerns are of sufficient severity to warrant the refusal of the development application. While it could be argued that the amendments suggested by Professor Toon and Mr Goodyer could improve the design of the building, the question the Court must answer is whether the design, as proposed, is worthy of approval. In my view, the answer to this question is yes.

54 DCP 35 contemplates the setting back of the upper level (or specifically that area between 10 m and 12 m in height) but the requirement is specific in that it only refers to industrial or other forms of non-residential development. The inference that can be drawn is that there is no requirement to set back the upper level for residential development.

55 I accept that the recesses provided by the balconies, the articulation and different treatments to the Hilly Street facade provide an acceptable streetscape presentation. I note that Mr Goodyer, while maintaining his overall objection to the impact of the building on the streetscape accepted that the design provided a number of mitigating factors, including its articulation and the variety of materials with different colours and textures.

56 DCP 35 and SEPP 65 draw heavily on the existing character and streetscape for their consideration. As stated previously, this area of Hilly Street has a wide range of building forms and consequently has a varied character. In my view, the proposed development comfortably relates to the more dense building forms in the immediate area because of its consistency with setbacks, landscaping and architectural style. The majority of these developments also have flat roofs with parapets, as proposed in the subject application. While DCP 35 makes reference to traditional roof forms (Build Form/Architectural Character-Requirement R2 and the Urban Character Analysis for Hilly Street) this type of roof form is generally restricted to the lower density or townhouse type developments.

57 In consideration of the relevant matters in DCP 35 and SEPP 65, I am not convinced that the proposed development is unacceptable in terms of its impact on the character of the area or the streetscape.

Resident concerns

58 The level of off-street car parking and the potential for increased street parking was an issue raised by a number of residents. This issue was addressed by Mr Hallam who indicated that the proposed development satisfies the council's requirements for off street car parking. For this reason, I accept that the level of off street car parking is acceptable.

59 Overshadowing was an issue raised by residents in the residential development to the south of the subject site. With the benefit of the applicants shadow diagrams (including those from the readvertised plans) I accept that any overshadowing brought about by the proposed buildings is not significant and is unlikely to impact on the adjoining property.

60 The potential for overlooking, particularly to the upper level of 36 Hilly Street, was addressed through a condition that provided translucent glazing to the adjoining window of the subject dwelling.

Orders

61 For the foregoing reasons, the Orders of the Court are:

1. The appeal is upheld.
2. Development Application 635/03 for the demolition of an existing factory building and construction of residential flat building at 30-34 Hilly St, Mortlake is approved subject to conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 3, 4, J and K.
G T Brown
Commissioner of the Court