Stateland Group v Ashfield Council

[2005] NSWLEC 443

Land and Environment Court

of New South Wales

CITATION:

Stateland Group v Ashfield Council [2005] NSWLEC 443

PARTIES:

Applicant:
Stateland Group Pty Ltd

Respondent:
Ashfield Municipal Council

FILE NUMBER(S):

11345 of 2004

CORAM:

Roseth SC - Tuor C.

KEY ISSUES:

Development Application - Development Control Plan :- residential flat building
application of FSR and height bonus provisions

LEGISLATION CITED:

Ashfield Local Environmental Plan 1985
State Environmental Planning Policy 65 - Design Quality of Residential Flat Development

DATES OF HEARING:

01/08/2005 and 02/08/2005

 
DATE OF JUDGMENT: 

08/16/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr G McKee, solicitor of McKees Legal Solutions

Respondent:
Mr P Jackson, solicitor of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC
Tuor C

16 August 2005

11345 of 2004 Stateland Group Pty Ltd v Ashfield Municipal Council

JUDGMENT

1 Commissioners: This is an appeal against the refusal by Ashfield Municipal Council (the council) to alter and convert an existing office building and erect a new residential flat building on lot 1 DP 991435, known as 164-174 Liverpool Road, Ashfield.

The site

2 The site is on the south side of Liverpool Road between Queen and Holden Streets. It has a 30m frontage to Liverpool Road and a 50m frontage to Norton Street. The site now contains a seven-storey office building standing at an angle to Liverpool Road and a two-storey car park on the Norton Street frontage.

3 Adjoining the site to the east along Liverpool Road is the former School of Arts building, which is listed as a heritage item. To the west along Liverpool Road is a two-storey building containing two shops. Further to the west is the Uniting Church and church hall, both of which are listed as heritage items and set back from the street. Further to the west is the Polish Club, which is also set back from the street. Between the Polish Club and Holden Street is a continuous line of two storey shops built to the street boundary. There are also two-storey shops on the other side of Liverpool Road. The Ashfield Primary School is directly opposite.

4 Adjoining the site to the east along Norton Street are three single-storey houses, Nos 45, 47 and 49 Norton Street. To the west are: a single-storey building on the Uniting Church site, a three-storey apartment building, the Polish Club, a house and a four-storey office building on the corner of Holden Street. The development on the other side of Norton Street is residential, mainly two-storey terrace houses. The zone boundary between the commercial and residential zones runs along Norton Street.

5 The site obtains vehicular access through a small parcel of land fronting Queen Street. The parcel belongs to the Department of Infrastructure, Planning and Natural Resources. The application has the consent of the owner.

The proposal and its history

6 The applicant proposes to alter and add to the existing office building to create an eight-storey mixed-use development containing retail/commercial at ground level and dwellings above. The altered building is referred to as Building A. The applicant also proposes to demolish the existing car park on the Norton Street frontage and construct an eight-storey residential flat building. The new building is referred to as Building B. Three basement levels are proposed with access from Queen Street. External communal areas are located on the eastern part of the site and on the roof of Building B.

7 The applicant lodged the development application in June 2003. Following notification, the council received 10 submissions. In April 2004 the council considered a planning report prepared by its consultant town planner that recommended approval. The council did not accept the recommendation and refused the application. In November 2004 the applicant filed an appeal to this Court. As part of the appeal process the applicant filed amended drawings with the Court. The council re-notified the plans and received six objections and one letter of support. In February 2005 the council considered whether it would change its position on the revised application. A report on the amended proposal, prepared by the council’s planning staff, found that the proposal was acceptable. The council did not accept the finding and confirmed its refusal of the application.

8 Since the version before the council in February 2005, the applicant has filed with the Court two more versions of the proposal. Following a third notification, the council received objections, though the number of the third lot of objections is not in evidence.

9 The main difference between the version before the Court and those before the council in April 2004 and February 2005 is that in the earlier versions Buildings A and B formed a continuous mass, whereas in the version before the Court, Buildings A and B are separated by 10m.

Relevant planning controls

10 The Ashfield Local Environmental Plan 1985 (LEP 85) zones the site 3(a) General business. A mixed commercial-residential development is permissible with consent in this zone. Development Strategy and Development Control Plan – Ashfield Town Centre (the Town Centre Strategy and DCP) establishes detailed guidelines for development in the town centre. State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65) establishes design principles for apartment buildings. It refers to the Residential Flat Design Code (RFDC) for detailed guidelines and “rules of thumb” for the assessment of residential flat buildings.

The issues

11 The council submitted its Statement of Issues containing eight issues. During the hearing these were discussed and refined as follows:

· Should the setback from Liverpool Road of the upper part of Building A be increased from the proposed setback of 1m?

· Should the distance between Buildings A and B be increased from the proposed 10m?

· Does the proposal justify a height bonus?

· Does the proposal meet the principles of SEPP 65?

· Does the proposal justify a FSR bonus?

The objectors’ concerns

12 The Court heard the evidence of two objectors in the course of a view of the site. Mrs S Wu, who owns No 47 Norton Street, said that her only concern was that her property should have access from Queen Street when it is redeveloped.

13 Mr S Chan of 36 Norton Street spoke also on behalf of the owner of No 34, lives on the south and residentially zoned side of the street. He said that his concern was to maintain his existing amenity. He feared that the front of his house would be overshadowed and overlooked from Building B. Other objectors living in Norton Street who wrote to the council had similar concerns.

Expert evidence

14 The Court appointed two experts in the case: Mr D Chesterman, an architect, planner and urban designer; and Mr R Mackay, a heritage consultant. The Court gave leave to the council to rely on evidence from Mr R Dickson; and to the applicant to rely on evidence from Mr G Baker, both architects and urban designers.

15 Mr Mackay was not required for cross-examination, so he supplemented his report through oral evidence at the site view. Mr Chesterman, Mr Dickson and Mr Baker gave concurrent evidence during the hearing.

Setback from Liverpool Road

16 The lower part of Building A (as extended and altered) is on the street alignment and generally aligns with the height of the School of Arts building and the two-storey line of shops between the Polish Club and Holden Street. The upper part of Building A sets back from the lower part by 1m and is angled at the southwest corner. The material and design of the building changes at this level, so as to emphasise the lower and the upper parts as separate elements.

17 In Mr Mackay’s opinion, the proposal’s impact on the heritage significance of the School of Arts is acceptable. He thought that it would be desirable to increase the setback of the upper part to 5m; however, the 1m setback, while not achieving the best result, was not a reason for refusal. In Mr Dickson’s view, the design does not provide adequate separation to preserve the existing two-storey scale of Ashfield Town Centre. He considered that a 5m setback was necessary. Mr Chesterman said that the 1m setback is adequate and preferable to a larger setback. Mr Baker said that a 5m setback would be desirable but a 1m setback is acceptable. Both Mr Chesterman and Mr Baker considered the proposal with the 1m setback was compatible with the existing context and the likely future character of Liverpool Road.

18 Given the disagreement between the experts, we turn to the Town Centre Strategy and DCP for guidance. The diagram titled Development Control Plan for Ashfield Town Centre shows a broken line along the Liverpool Road frontage of the site. The legend interprets the broken line as new facades to retain alignment and scale with neighbours.

19 For the remainder of the block between Queen and Holden Streets, (with the exception of the Uniting Church and the Polish Club, which are set back from the street alignment), the diagram shows an unbroken line. The legend interprets the unbroken line as facades contributing to the character of Ashfield, which are to be retained.

20

Clause 2.4 of the DCP states:

Overall wall, parapet and individual floor heights are to be complementary with adjacent development at least at the street frontage of the site. New higher development can then step back.

21 In our opinion the above clauses indicates three clear intentions:

· the existing two-storey scale of development on the Liverpool Road frontage between Queen and Holden Street should be retained;

· new buildings in this block should maintain the existing alignment and scale at the street frontage; and

· where development is higher, it should be set back from the street alignment.

22 The proposed setback of 1m would be hardly noticeable within the context of a 30m-wide eight-storey building. To achieve a visual separation that would to some extent preserve the appearance of two-storey scale along Liverpool Road, at least a 5m setback would be required. For this reason we accept Mr Dickson’s evidence, with which Mr Baker and Mr Mackay found some agreement, that the setback of the upper section of Building A should be 5m.

Distance between Buildings A and B

23 The distance between Buildings A and B is 10m. Mr Chesterman, Mr Dickson and Mr Baker agreed that it should be increased to 12m. However, Mr Dickson’s position depended on Building A being set back 5m from the Liverpool Road frontage. We have accepted Mr Dickson’s view on the Liverpool Road setback and note that all three experts agreed that the distance between Buildings A and B should be 12m.

Height bonus

24 The dispute about height concerns mainly Building B.

25 Section 5 Building Heights of the Town Centre Strategy and DCP includes a Height Map that shows a maximum height of 6 storeys for the street block bounded by Liverpool Road and Queen, Norton and Holden Streets. The Height Map indicates, in relation to the south side of Norton Street, that there is a particular need to consider overshadowing to residentially zoned properties. The Town Centre Strategy and DCP states that

the council will consider a bonus of two additional storeys above ground within the core areas, with the exception of the area between Knox and Miller avenue, where Community Facilities, Open space, and/or Community Services are proposed for the individual development site.

26 The applicant would accept a condition providing for a community facility within the building. The Town Centre Strategy and DCP sets out the principles according to which the maximum building height is to be determined:

i No further overshadowing of footpaths on the opposite side of major streets between 12 noon and 2.00pm, midwinter;
ii Limited further overshadowing of existing residentially zone properties;
iii Maintenance of a street scale in the order of 2:1 for east-west streets and 1:2 for north-south streets on the property boundary with further levels stepped back at and angle of 45o.

27 There was disagreement between the parties whether Norton Street is a major street. Given that it is narrow and not a shopping street, we are inclined to the view that it is not a major street, so Principle (i) does not apply. However, Principles (ii) and (iii) are relevant. Mr Dickson thought the Building B did not meet Principle (ii); Mr Baker and Mr Chesterman disagreed. All three experts agreed that Building B did not meet Principle (iii).

28 During the discussion of FSR bonus, Mr Chesterman suggested that Building B should be a maximum four-storey building set back 6m from Norton Street, as the height of the terrace houses on the south side equated to three floors in a modern building and the buildings on the north side were four storeys. In this case Building B would be almost contained within an envelope comprising a 45o plane that intersects the site boundary at a height above street level that is equal to half the width of Norton Street, ie 5m. Any additional storeys should be further set back so as to be contained within the envelope.

29 We note that Building B now presents as a two-storey building to Norton Street set back 6m, with the third, fourth, fifth and sixth storeys set back in one line and the seventh and eighth storeys each set back further. The fifth, sixth and seventh storeys breach the 45o guideline, while the eighth storey is within it. In our opinion, Building B should remain in its present form up to the fourth storey. The three levels above, ie the fifth, sixth and seventh storeys should be set back behind the 45o guideline to comply with the Town Centre Strategy and DCP. The eighth storey may remain in its present form.

30 We note that Building A does not conform to the 45o guideline in respect of Liverpool Road. All the experts agreed that it would be unreasonable to require it to conform since it is an existing building. However, the increased setback discussed above will better achieve the objective of the guideline. This is not expressly articulated in the DCP but, In our opinion, is to maintain a scale of development that relates to the width of the street with upper levels set back to minimise the impact of bulk from the street and to maximise solar access, sky exposure and the openness of the street.

Assessment under SEPP65

31 Despite the application’s two-year history and the fact that two planning reports have assessed it, the proposal has been the subject of only the most cursory assessment under SEPP 65. Mr Dickson’s report to the Court includes a full SEPP 65 assessment that has regard to the RFDC. Mr Dickson found that the proposal performed poorly on the following:

· insufficient deep soil zones;

· inadequate and unusable communal open space

· inadequate privacy between the proposal and surrounding sites, as well as between Buildings A and B;

· poor internal planning of the apartments;

· narrow balconies;

· inadequate storage;

· poor solar access;

· poor natural ventilation;

· inefficient location of garbage room;

· no provision for water conservation.

32 Mr Baker also prepared an assessment under SEPP 65 and the RFDC, though in respect of an earlier version of the proposal. We do not think that this fact is of great moment, since the changes from the earlier versions are unlikely to affect his conclusions significantly. Mr Baker found that the proposal performed satisfactorily on:

· deep soil zones;

· the amenity of communal open space;

· internal planning of the units;

· the width of the balconies;

· solar access;

· the location of the garbage room;

· water conservation.

33 How is it possible that two experts reached such diametrically opposite conclusions on the environmental performance of two versions of the same proposal? The answer is that they approached the assessment differently. For example, in respect of solar access, Mr Dickson noted that the application did not contain adequate supporting information, but that 25% of the units had single southerly aspect. Mr Baker found that 87% of the units received at least 2 hours of sunlight at mid-winter. His finding is not supported by an analysis of solar access to the dwellings, or by a statement of his assumptions on when he considered a dwelling to be in sunlight. In addition, he did his assessment without taking into account the dividing walls between balconies.

34 On the matter of water conservation Mr Dickson noted that the plans do not show water conservation measures. Mr Baker wrote that it was his understanding that the proposed development will incorporate water-conserving features. In fact, the proposal does not commit itself to any water-conserving features.

35 In our opinion, Mr Baker’s assessment, apart from dealing with an earlier version of the proposal, is not adequate to allow the Court to reach conclusions. An application for a proposal of this magnitude should be accompanied by a thorough and detailed assessment. This is not to say that it must meet every guideline and rule of thumb of the RFDC. It may be that in a high-density town centre location a development cannot score well on every aspect of environmental performance. However, the assessment should have integrity and be thorough. The Court must know how the proposal performs before it can consider whether a relaxation of the requirements is justified.

FSR bonus

36 Clause 17B of LEP 85 specifies that the “base” FSR for the site is 2:1. Subclause 17B(4) states that the council may consent to an additional FSR of 1:1 provided there is no adverse impact on the following:

(a) the scale and character of the streetscape;
(b) the amenity of any existing or potential residential units on neighbouring land;
(c) sunlight access to surrounding streets, open space and nearby properties; and
(d) wind flow patterns to surrounding streets, open space and nearby properties.

37 The Town Centre Strategy and DCP states that additional floor space potential is possible to encourage new dwellings, site amalgamation and community facilities. As indicated above, the applicant would accept a condition providing for a community facility within the building. The DCP states also that the achievement of additional FSR depends on the characteristics of the site, such as:

· size and shape;

· the presence of buildings retained;

· the need to reduce impact on adjoining land;

· traffic, parking and vehicular access;

38 Finally, the DCP states that additional FSR will not be granted if the council considers the development will have an adverse impact on:

· the scale and character of the streetscape;

· the amenity of any resultant residential units;

· the amenity of any existing or potential residential units on neighbouring land;

· sunlight access to surrounding streets, open space and nearby properties;

· wind flow patterns to surrounding streets, open space and nearby properties.

39 The experts turned their minds to the question whether the proposal meets the tests in cl 17B(4) of LEP 85. All experts agreed that it meets cl 17B(4)(d), ie the wind flow requirement. Mr Dickson said that the proposal did not meet the other three tests. Mr Chesterman said that the proposal did not meet the tests, but a four-storey Building B, set back 6m, would meet all the tests. Mr Baker said that the proposal met cl17B(4)(a), but not the tests in (b) and (c).

40 It is clear from the above that, while there was no unanimity, there was an agreement between the experts that the proposal in its current form did not meet the tests for meriting an additional FSR of 1:1. The question then arises: how much additional FSR does the proposal merit? In our opinion, this question cannot be answered. The appropriate FSR for this site is the FSR of a proposal that responds to the requirements of the Town Centre Strategy and DCP as applied to the proposal, ie:

· Building A should set back by 5m from Liverpool Road above the lower element (podium) which continues the two-storey height of existing buildings;

· Building A and B should be separated by 12m;

· Building B should remain in its present form up to the fourth storey. The three levels above, ie the fifth, sixth and seventh storeys should be set back behind the 45o building envelope specified in the Town Centre Strategy and DCP;

· the apartments should comply with the principles and guidelines of SEPP 65 and the RFDC, as far as this is practicable in a high-density town centre location.

41 An amended proposal, based on the version before the Court, that responds to the above findings is likely to have a FSR between 2:1 and 3:1.

Other issues

42 Mr Chesterman raised concerns with the trees being in private courtyards in Norton Street. He considered that they should be within common property to better ensure their survival. Mr Chesterman and Mr Dickson considered that the design and extent of deep soil planting in the communal area should be improved. We agree that a re-designed proposal should address these concerns.

Inadequacy of the drawings

43 During the hearing it became clear that the drawings before the Court did not comply with the requirements of the Court’s Practice Direction or the Environmental Planning and Assessment Regulations 2000. For example, the plans did not include any dimensions and were not drawn accurately to scale.

Conclusions

44 The applicant’s advocate, Mr G McKee, agreed that the drawings before the Court were not of a standard that could be approved. He submitted that the Court should hand down its findings and adjourn the matter to allow the applicant to amend the proposal. The council’s advocate, Mr P Jackson, submitted that the Court should refuse the application. The applicant could then lodge a new development application addressing the Court’s decision, which would be assessed by the council’s staff. In Mr Jackson’s submission, this would involve lower costs for the council than continuing the litigation.

45 In our opinion, there is an inconsistency in Mr Jackson’s submission. On the one hand, he submitted to the Court that the proposal was not worthy of approval; on the other, he suggested that an amended proposal should be assessed by the same team that has twice recommended approval of earlier versions that were much bulkier than the one before the Court.

46 In our opinion, the best outcome for the Ashfield Town Centre would be achieved if the proceedings were adjourned and the applicant were allowed to submit an amended proposal that responds to the Court’s findings. We note that this would be the fifth or sixth version and that the council has expended a considerable sum to assess the versions so far. While we do not think it is appropriate to make cost orders before the completion of the proceedings, we indicate that, in our opinion, the council should be compensated for further costs in this matter.

Directions

1. The applicant is to file and serve amended plans by 16 September 2005.

2. The respondent and Mr Chesterman to provide comments on the amended plans by 30 September 2005.

3. The parties are referred to call-over on 6 October 2005 for the allocation of one day’s hearing.

4. Liberty to restore on two days’ notice.

________________
Dr John Roseth
Senior Commissioner

________________
Annelise Tuor
Commissioner