Taranto v Wollongong City Council
[2013] NSWLEC 1256
•19 December 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Taranto v Wollongong City Council [2013] NSWLEC 1256 Hearing dates: 3 December 2013 Decision date: 19 December 2013 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld
Catchwords: Consent Orders: Development application; residential flat building, height, bulk and scale, isolated allotment Legislation Cited: State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development; Wollongong Local Environmental Plan 2009; Environmental Planning and Assessment Act 1979 Texts Cited: Wollongong Development Control Plan 2009; Residential Flat Design Code Category: Principal judgment Parties: Vanessa Anne Taranto (Applicant)
Wollongong City Council (Respondent)Representation: Mr P Moggach
Mr G Reilly
RMB Lawyers (Applicant)
Wollongong City Council (Respondent)
File Number(s): 10481 of 2013
Judgment
Development application DA-2012/1471 was lodged with Wollongong City Council on 21 December 2012 seeking consent to demolish an existing dwelling house and construct a residential flat building comprising two towers over basement parking at 18 Kembla Street, North Wollongong. The council refused consent and Mrs Taranto is appealing that decision.
The matter commenced as a s34 conciliation conference and, despite agreement being reached to plans for a development of reduced scale in that forum, the council officers were not delegated to enter into an agreement. The conference was terminated and a hearing held with the parties seeking Consent Orders from the Court.
The site and its context
The site is located on the western side of Kembla Street, is regular in shape with frontage of 15.24m, depth of 80.775m and site area of 1231sqm. The land falls generally from the east (front) to west (rear) with a slight cross fall from south to north.
A single storey dwelling house currently stands on the site and is proposed to be demolished to allow redevelopment of the property. Development immediately to the south of the site comprises an 8 storey residential flat building and to the north are residential flat buildings fronting Edward Street, a four storey building over basement carparking at Nos 3-5 and a nine storey building over basement at No 7. Approval has been granted to construct a four storey residential flat building at No. 1, on the corner of Edward and Kembla Streets.
A four storey residential flat building is located to the rear of the site, known as No 17 Church Street with multi-level residential buildings opposite the site.
Background and the proposal
The original development application proposed the construction of 24 apartments over a single level basement carpark. The dwellings were located in two buildings, the front building containing 11 apartments and 6 storeys and the rear building, 13 apartments over 7 storeys.
Wollongong City Council refused consent on 13 June 2013. The grounds of refusal are summarised as being:
- Inconsistency with the provisions of State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP65).
- Non-compliance with the provisions of Wollongong Development Control Plan 2009 (DCP).
- Overdevelopment of the site as the building is too large;
- Development is not in the public interest.
In accordance with the practice of the Court, the appeal commenced as a conciliation conference. That conference commenced on site with a view of adjoining properties undertaken. Evidence was presented by a number of residents of those properties with that evidence heard within those units or on the site of the building.
As a result of the discussions held between the parties, amended plans were prepared and are before the Court. The development now proposed is for a basement containing parking for 21 cars (17 resident and 4 visitor spaces) and 2 motorcycles, storage areas, waste storeroom and water tank. Lifts would connect the basement to the individual units. Two residential buildings are still proposed, the front building, Building A, having a proposed height of 4 storeys and containing 7 apartments, 1 x 1 bedroom and 6 x 2 bedroom units.
Proposed Building B at the rear of the site would contain 5 storeys and 10 apartments of which nine are 2 bedroom and one 1 bedroom.
The effect of the amendments is to reduce the height of the proposed development by 2 storeys and the number of units from 24 to 17. Additional communal open space is provided at the rear of the site and an area within the front setback all of which is available as deep soil planting. A single driveway off Kembla Street provides access to the basement with a separate pedestrian pathway servicing the two buildings and central communal open space area.
The planning controls
The site is zoned R1 General Residential under Wollongong Local Environmental Plan 2009 (LEP). The objectives of the zone are:
- To provide for the housing needs of the community.
- To provide for a variety of housing types and densities.
- To enable other land uses that provide facilities or services to meet the day to day needs of residents.
Residential flat buildings are permitted within consent in the R1 zone. Clause 4.3 of the LEP provides development standards for building height and states:
(1) The objectives of this clause are as follows:
(a) to establish the maximum height limit in which buildings can be designed and floor space can be achieved,
(b) to permit building heights that encourage high quality urban form,
(c) to ensure buildings and public areas continue to have views of the sky and receive exposure to sunlight.
(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
The maximum height permitted for the site is 32m and the height of the proposed development is 16.4m so is considerably less than provided by the development standard.
Clause 4.4 of the LEP establishes maximum floor space ratios with a maximum of 1.5:1 permitted for the site. The floor space ratio (FSR) of the proposal is 1.01:1 so compliant with the development standard.
The site does not comply with the minimum site width control contained in clause 7.14 of the LEP. That clause states:
(1) Development consent must not be granted for development for the purposes of multi dwelling housing unless the site area on which the development is to be carried out has a dimension of at least 18 metres.
(2) Development consent must not be granted for development for the purposes of a residential flat building unless the site area on which the development is to be carried out has a dimension of at least 24 metres.
Clause 4.6 of the LEP provides for Exceptions to Development Standards and states:
(1) The objectives of this clause are as follows:
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard.
(4) Development consent must not be granted for development that contravenes a development standard unless:
(a) the consent authority is satisfied that:
(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
(b) the concurrence of the Director-General has been obtained.
(5) In deciding whether to grant concurrence, the Director-General must consider:
(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the development standard, and
(c) any other matters required to be taken into consideration by the Director-General before granting concurrence.
(6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if:
(a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or
(b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard.
(7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3).
(8) This clause does not allow development consent to be granted for development that would contravene any of the following:
(a) a development standard for complying development,
(b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated,
(c) clause 5.4,
(ca) clause 4.2A, 6.1 or 8.3.
The applicant, pursuant to the provisions of clause 4(a)(i), lodged a written objection to the minimum allotment width development standard and the Director General granted concurrence to the variation sought on 19 February 2013. The grounds of the objection are that the site, following development consent being granted for the site at No. 1 Edward Street, is an isolated allotment and cannot be consolidated with adjoining land to achieve the minimum width.
Other relevant clauses in the LEP are 7.5 Acid Sulphate Soils; 8.1 Objectives for Wollongong City Centre and 8.5 Design Excellence.
The DCP contains specific provisions for residential flat buildings in Part B Chapter B1 Section 6. Of relevance to the application are the controls in sections 6.2.2 for an isolated allotment; 6.3 front setbacks; 6.4 side and rear setbacks; 6.6 and 6.7 visual and acoustic privacy; 6.8 carparking; 6.11 landscaping requirements; 6.12 deep soil zone and 6.18 solar access.
The council agree that the site is an "isolated lot" for the purpose of the DCP. Section 6.2.2.4 and 5 state:
4. In cases where the subject site is an existing "isolated lot", Council may consider a variation to the minimum site width requirement provided, in the opinion of Council, the proposed development will not cause any significant adverse overshadowing, privacy or amenity impact upon any adjoining
development.
5. In certain existing "isolated lot" cases, a proposed development may not achieve its maximum development potential (e.g. maximum floor space ratio and height) where side and rear setbacks are varied and the development does not, in the opinion of Council, achieve:
(a) Adequate separation between buildings to maintain reasonable levels of solar access, privacy and amenity to neighbouring dwellings;
(b) Adequate landscaping screening of the development to maintain the amenity of adjoining dwellings; and
(c) Maintain the streetscape amenity of the locality.
The DCP adopts the provisions of SEPP65.
The evidence
Resident evidence was heard on site prior to the commencement of the conciliation conference and in Court at the beginning of the Consent Orders hearing. The issues raised are summarised as follows:
- Non-compliance with the LEP and DCP, particularly in relation to minimum allotment width; building separation, side and rear setbacks, visual privacy, acoustic privacy, deep soil planting and solar access;
- Loss of views;
- Traffic and parking;
- Overdevelopment of the site;
- Building heights should be further reduced to 4 and 3 storeys.
Neither party provided expert evidence during the hearing.
A comprehensive assessment of the application under s79C of the Environmental Planning and Assessment Act 1979 (the Act) was conducted by a council officer and tendered as Exhibit 2. The report considers the design principles in SEPP65 and concludes that the reduced scale development has an improved relationship with the context of the surrounding area and the reduced height allows for a transition from the smaller scale building approved for the adjoining site to the north being down slope from the subject site to the taller building to the south. In addition, the improved built form fits better with the existing and future streetscape, the density is more acceptable and the area available for deep soil planting is increased. This is said to be a critical issue for council in reducing the impact of the proposal and achieving a better fit in the larger context.
A compliance table was included at the end of the report. That table compares the development with the rule of thumb controls contained in the Residential Flat Design Code (RFDC) and shows that the following controls are not met:
- Building depth;
- Building separation in some but not all locations when measured between adjacent buildings.
The table also considers the controls contained in the DCP and the only control identified as not being met is that for side boundary setbacks. The DCP provides for a side setback for buildings up to 12m or 4 storeys of 3.5m where a blank wall or no habitable rooms, otherwise 6m and for buildings of 5-8 storeys or up to 28m, 4.5m or 9m respectively. The two buildings are proposed to be setback 3.5m from the side boundaries and contain bedroom, laundry and bathroom windows on the southern façade and bedroom, study, kitchen and living room windows to the north. The council's assessment of the setbacks is that the reduction in building height has significantly reduced the impact of the development by improving solar access and views and is considered acceptable in the particular instance of the case.
High sill windows have been proposed to address privacy where windows face the property to the south. This was not incorporated in the northern elevation where building separation distances are greater. The council says the high sills remove the incidence of overlooking and improve the privacy impact from the original proposal.
The council has also assessed a series of solar diagrams and considers the impact to adjoining properties is acceptable.
The report concludes that the contentions in the case are satisfactorily addressed by the amended plans.
Conclusion and findings
Having regard to the evidence, it is apparent that the amended plans provide for a considerable reduction in building height and FSR from that allowed under the council's planning controls for the site as a consequence of the narrow allotment width. Where a maximum height of 32m is allowed, the building, at 16.4m is just over half that height. The maximum FSR is 1.5:1 and the proposal 1.01:1.
The council is satisfied that the changes made address the objectives of its controls and the objectives of the R1 zone. Having regard to the context of the site, it's width and the maximum permissible height and comparing that to what is proposed, I accept the council's evidence that the impacts on adjoining properties are acceptable. I have considered the submissions made by the residents and concur with Mr Moggach that a complying development would overshadow the lower levels of the adjoining development to the south. I am satisfied that the grant of consent would be lawful and that there is no reason why the Consent Orders should not be made.
The Orders of the Court are:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application No. DA2012/1471 for the demolition of an existing dwelling and construction of a residential flat building at 18 Kembla Street, North Wollongong subject to the conditions set out in Annexure 'A'.
(3) The exhibits, other than exhibits A and B, may be returned.
____________________
Sue Morris
Commissioner of the Court
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Decision last updated: 14 January 2014
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