Tran v Council of the City of Sydney

[2013] NSWLEC 1047

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tran v Council of the City of Sydney [2013] NSWLEC 1047

Hearing dates:

11 March 2013

Decision date:

20 March 2013

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

(1) The appeal is dismissed.

(2) Development consent for DA/2012/468 for the proposed change in use of Unit 10, 2 - 6 Tilford Street Zetland, from commercial to residential is refused.

(3) The exhibits may be returned except for 3, A and C.

Catchwords:

Development application; Conversion of an approved commercial space unit to a small residential unit within an existing residential flat building, amenity considerations, private open space, solar access, ventilation, safety and security

Legislation Cited:

Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998
Sydney Local Environmental Plan 2012
South Sydney Development Control Plan 1997
Sydney Development Control Plan 2012
South Sydney Development Control Plan 11: Transport Guidelines for Development 1996
State Environmental Planning Policy - BASIX
State Environmental Planning Policy 65 - Design Quality of Residential Flat Buildings

Category:

Principal judgment

Parties:

Leanne Tran (Applicant)

Council of the City of Sydney (Respondent)

Representation:

Ms L Saw (Applicant)
Mr A Hawkes (Respondent)

File Number(s):

11179 of 2012

Judgment

Background

1. This appeal is against council's refusal of a development application for the change in use of a ground floor commercial unit to a residential bedsit unit. The unit is situated within a residential flat building located at Unit 10 2 - 6 Tilford Street Zetland.

1. The issues raised by council concern:

• Residential amenity, particularly private open space, solar access and ventilation
• Safety and security

The site

1. The subject property is Lot 10 in SP 73369 and it has an area of 46 sq m. It is located within Lot 1 DP 1066456 that has an overall area of 1108 sq m and it comprises a three-storey mixed use development containing nine (9) residential units, the subject commercial lot and basement parking.

1. The site has three street frontages, Tilford Street to the south-west, Merton Street to the north-west and McPherson Lane to the north-east. The southeastern boundary adjoins Mary O'Brien Reserve.

1. Unit 10 of the existing development is located on the ground floor of the southeastern elevation of the existing development. The unit has a single aspect facing to the southeast. The frontage of the unit is set back from the southeastern boundary adjacent to the reserve by approximately 1.2 m. A basketball area is currently directly opposite the unit within the Mary O'Brien Reserve. No car spaces are allocated to the unit. Unit 10 is currently accessible via an unrestricted pedestrian walkway, approximately 1.2 m wide, which connects Tilford Street and McPherson Lane and via the communal car park for the existing development. This walkway is shown as common property in the strata plan.

1. When development consent was granted in May 2002, Condition 15 required that a subsequent development application be submitted for the fit out and use of Lot 10 as a café. However this lot has apparently remained vacant and no application made for a café.

The proposal

1. The proposal is to change the use of the property to permit its use as residential bedsit unit. This involves:

• internal alterations for new internal walls, including alterations to enable access to the toilet room from within Unit 10 and not via the internal car park for the building. Also the creation of a 2 m wide, "private open space area/balcony" (balcony) entry to the unit.
• external alterations including replacement of existing glass sliding doors with a glass door/window combination frontage that are translucent to a height of 1.5 m.
• retention of the existing security grilles adjacent to the glass doors along the walkway.
• arrangements for the provision of a replacement toilet on adjoining common property.

Planning controls

1. The following planning controls apply:

(i)   South Sydney Local Environmental Plan 1998 (SSLEP): Under this Local Environmental Plan the site is zoned Mixed Use 10(a).

(ii)   Sydney Local Environmental Plan 2012 (SLEP) (as gazetted on 14 December 2012). The site is zoned R1 General Residential zone.

(iii)   South Sydney Development Control Plan 1997 (SSDCP)

(iv)   Sydney Development Control Plan 2012 (SDCP)

(v)   South Sydney Development Control Plan 11: Transport Guidelines for Development 1996.

(vi)   State Environmental Planning Policy - BASIX

(vii)   State Environmental Planning Policy 65 - Design Quality of Residential Flat Buildings. According to cl 4, this Policy applies to the following development types:

(a) the erection of a new residential flat building, and

(b) the substantial redevelopment of the substantial refurbishment of an existing residential flat building, and

(c) the conversion of an existing building to a residential flat building.

1. Currently the subject site is subject to the Sydney Local Environmental Plan 2012 (SLEP), however, at the time of lodgement, the subject site was subject to the South Sydney Local Environmental Plan 1998 (SSLEP). The SLEP 2012 includes a savings provision (cl 1.8A) that allows Development Applications to be assessed under the previous Plan (i.e. South Sydney LEP 1998):

1.8A Savings provision relating to development applications

(1) If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced.

1. Accordingly, the SSLEP is the prevailing control, and SLEP is to be considered on the basis of a draft plan. It was also agreed that the relevant detailed controls are those contained in SDCP 2012.

1. Clause 10 of SSLEP provides that:

10 Zone objectives and general development controls

Except as otherwise provided by this plan, the Council must not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located.

1. The relevant zone objectives are:

(f) to minimise any adverse impact, including social impact, on residential amenity by devising appropriate design assessment criteria and applying specific impact mitigation requirements by the use of development control plans, and

The evidence

1. A joint planning report was presented by:

• Mr D Little, Council planner
• Mr K Nash, Applicant's consulting planner.

1. The planners initially discussed the relevance of the various controls. They agreed that the current development controls are contained in SDCP, which repealed SSDCP. Although Mr Little says that consideration should be also be given to the SSDCP provisions and SEPP 65 for guidance on good design principles. Consequently, the following aspects are identified as noncompliant:

• Private and communal open space
• Visual and aural privacy, and setback
• Natural ventilation
• Daylight access.
• Safety and security

1. However, Mr Nash also says that these issues should only be addressed in terms of SDCP and SEPP 65, according to the provisions of the following cl 4(c):

"the conversion of an existing building to a residential flat building."

1. Having considered the discussion regarding the various definitions of "building/buildings", I am inclined to accept Mr Little's opinion that in the subject context, the proposal does not satisfy the cl 4(c) criteria. In my assessment, the application is to convert the use of the existing unit within the existing residential flat building. In the context of cl 4(c), I do not classify the unit as a building, although it may be 'part of a building'. In these circumstances, particularly as the existing building is already a residential flat building, I do no consider cl 4(c) directly applies.

1. Nevertheless as both planners have referred to the SEPP 65 and associated Residential Flat Design Code controls, which is called up in the SDCP, I consider these references reasonable on the basis that they are guidelines to achieve "good" development. Accordingly, I have considered the evidence on the above-mentioned aspects to assess the overall impacts on the amenity of the proposed residential unit as required by cl 10 of SSLEP.

Private open space

1. The subject proposal involves the inclusion of an entry via a private open space area (balcony) that is 2 m wide and 3 m deep (area approximately 6.26 sq m), which is located adjacent to the fire corridor exit route. This area is fully roofed with a south-western aspect and it contains a 2 m wide sliding, entry door.

1. Mr Little says that this open space area is inadequate because under SSDCP a onebedroom or bedsit unit requires a minimum 10 sq m of private and/or communal open space and an additional 8 sq m is required for a private balcony or terrace. Insofar as SCDP only requires 75% of units to satisfy the private open space requirements, nevertheless Mr Little says it is essential the subject unit has adequate private open space because the existing building has no communal open space.

1. Against this, Mr Nash says that there are no relevant numerical standards for balcony/private open space in SDCP and that the RFDC's minimum requirement for a 6 sq m balcony is satisfied. In his opinion the balcony has an excellent amenity and outlook to the mature trees in Mary O'Brien Reserve. Also, it is linked to the internal living area, which provides better amenity than nearby units.

Visual and aural privacy and setback

1. This concerns the likely amenity for the occupants due to the proximity of the sliding translucent glass doors and balcony to the adjacent pedestrian walkway and 1.2 m separation to the reserve. Accordingly, reference was made to the similar controls in both SSDCP and the following in SDCP:

4.2.3.10 Outlook

(1) Provide a pleasant outlook, as distinct from views, from all apartments...

4.2.3.11 Acoustic Privacy

(3) Development is to incorporate measures that reduce the entry of noise from external sources into buildings...

4.2.5.4 Residential uses on the ground and first floor

(1) Ground floor residential uses are to be provided with a minimum of

(b) 4m setback from the site boundary the glass line enclosing an internal space at the ground and first floor, and

1. Mr Little says that given that the unit has a maximum depth of 5.5 m, there is no effective buffer from the access way and the public park aside from the sliding glass doors. In the circumstances, he says that this will result in poor visual and acoustic amenity for the occupants, which is unacceptable.

1. Against this, Mr Nash considers the apartment will achieve a high quality outlook from the studio apartment and balcony towards Mary O'Brien Reserve. Also acoustic privacy should not be an issue because the nearby play equipment in the reserve is rarely used, there is no nearby lighting in the preserve. He says that the proposed unit will enjoy the same level of amenity as the nearby five units.

Daylight access

1. This issue arises because of the ground floor unit location and its single aspect to the south. Of relevance, SDCP provides:

4.2.3.1 Solar access

...

(2) Proposed apartments in a development and neighbouring developments must achieve a minimum of 2 hours direct sunlight between 9am and 3pm on the dates indicated in provision (1) onto at least 1sqm of living room windows and a minimum 50% of the required minimum area of private open space.

Note: This provision applies to at least 70% of the apartments in a development (in Accordance with the requirements of the NSW Residential Flat Design Code).

1. According to Mr Little, this building was approved prior to the RDFC and it does not have common private open space. Therefore he considers it important each unit should have adequate solar access. But as the subject unit has the worst solar access in the building because of its south facing, ground floor location that is also covered by an upper level walkway, he considers it unsatisfactory.

1. However, Mr Nash says that notwithstanding the southern aspect, the unit will achieve "a high quality of natural light due to the extensive floor to ceiling glazing for the living room/ kitchen and the terrace. The extent of the glazing represents 70% of the façade of the apartment." Furthermore, the 5.5 m internal depth of the unit will enable satisfactory natural daylight entry.

Natural ventilation

1. The proposed natural ventilation is via two sets of opening sliding doors so as to achieve cross ventilation. One set opens onto the recessed balcony and the other set opens directly onto to the adjacent pedestrian walkway. According to Mr Nash, this design satisfies the requirements of 4.2.3.9(2) as it has openable windows/doors on different facing facades.

SEPP 65

1. I have considered the evidence of both planners on the basis that the SEPP 65 controls provide useful guidance to assess amenity impacts. As noted previously, I doubt that the cl 4(c) provisions apply.

1. Insofar as Mr Nash refers to the RDFC "rules of thumb", they are difficult to apply in my assessment because they mainly refer to an overall building assessment. Whilst he assesses it on this basis, I do not consider that there is sufficient information regarding the amenity of other units to rely upon. However I have considered his assessment of the performance criteria for the subject unit.

Safety and security

1. The contention is that the change of use for the unit to residential is unsatisfactory because it does not comply with the following SDCP objectives and guidelines in Control 3.13.1 to:

(a) Provide a safe environment and minimise opportunities for criminal and anti-social behaviour...

Guidelines:

(3) Minimise blind-corners, recesses and other external areas that have the potential for concealment or entrapment.

(7) Where dwelling units have individual main entries from a public space, the entry is to include a clearly defined space between public and private areas...

1. Mr Little is not satisfied with the proposal because:

• The main pedestrian access to the unit is via the open walkway directly adjacent to the unit, which allows 24-hour public access.
• The closest street entry is from Tilford Street, which requires access via the stairs area, which is poorly lit and passive surveillance is restricted.
• It does not comply with the CPTED (Crime Prevention Through Environmental Design) principles, in terms of surveillance, access control and territorial reinforcement

1. However Mr Nash supports the proposal on the basis that:

• The access walkway is defined by a variable height masonry retaining wall, which distinguishes the boundary with the reserve.
• The walkway is part of the private common property and not a designated public thoroughfare.
• If required, public access along the pathway could be restricted by the erection of a fence.

Conclusion

1. My determination of this matter involved consideration of changing planning regime over the period of the development. In terms of the LEPs, I am satisfied that the change in use is permissible under the prevailing controls in SSLEP and consistent with the subsequent SLEP 2012 provisions. I then think that the relevant design controls are contained the more recent SDCP and any discretion in their application can be tested against the design guidelines in the SEPP 65 and the RDFC.

1. However, I do not accept the applicant's submission that the controls in SEPP 65 and the RDFC directly apply because I do not accept that cl 4(c) applies directly in the subject matter. It was not established that in the circumstances, the subject unit should be classified as a "building", which is subject of a conversion to a residential flat building because that already exists.

1. From my consideration of the plans and observation at the view it is apparent that the proposed residential unit has several uncommon elements, relative to the existing building context, which in my opinion significantly reduce its amenity as follows:

• It is relatively small and extremely exposed to public interaction from the adjoining walkway through the property and from users of the neighbouring reserve, which is separated by approximately 1.2m. Whilst the walkway is private property (common area in the strata plan) nevertheless it is open and appears to function as an unrestricted public thoroughfare.
• The southern wall of the unit comprises mainly full-length, 4m long sliding glass doors immediately abutting the walkway, which are translucent up to 1500 mm from the floor, leaving the top 500 mm clear. These doors retain the outside security grill.
• The internal entry/courtyard (balcony) is also relatively small and its enclosed location restricts its outlook. As it is directly accessed from the adjoining walkway, new security grills are to be installed along the boundary.
• The unit has a predominantly southern aspect, which significantly limits any effective solar access and natural light entry.

1. Insofar as the SDCP now requires ground floor units to have 25 sq m private open space with a minimum dimension of 4 m, I also note that it relaxes this requirement for a percentage of units as previously mentioned. In my assessment, diminished weight can be given to the numerical controls providing a reasonable amenity balance is achieved and I have assessed the proposal on that basis.

1. Whilst the entry balcony is smaller that specified in the SDCP, I think its amenity is significantly compromised because of its enclosed location, being recessed within the unit and subject to some enclosure from the external upper level walkway path. Also its southern aspect and requirement for fulllength security screening to prevent direct entry from pedestrians reduces its amenity.

1. Importantly, the proposal does not satisfy the requirements of cl 3.13.1 to include a clearly defined transitional space between the public walkway and the adjoining private open space. This good design requirement for ground floor apartments is supported by the following section of the RFDC:

• Ensure adequate privacy and safety of ground floor units located in urban areas with no street setbacks by:

- stepping up the ground floor from the level of the footpath a maximum of 1 2 metres (see Fences + Walls for detail considerations)

- designing balustrades and establishing window sill heights to minimise site lines into apartments, particularly in areas with no street setback

- determining appropriateness of individual entries (see Building Entry, Safety)...

1. It is apparent that the context of the existing unit configuration precludes any reasonable attainment of these design provisions. This confirms my opinion that the utility and amenity of this open space area/balcony area, with zero effective setback from the pedestrian walkway, is a negative aspect of the proposal for residential use and contributes significantly to the refusal of the application, in my assessment.

1. I think that the outlook amenity from the unit will be materially reduced because the southern glass doors would provide the main outlook and they will be translucent for a height of 1500 mm. Whilst there will be clear glass for the top 500 mm, this will only allow limited glimpses of tree tops that will be restricted due to the intrusion of the enclosing security grills. If and when the sliding door is open, I consider the security grills and immediate proximity to the walkway and reserve again significantly compromise the outlook. I am unable to rely on Mr Nash's opinion that the unit will have a "high quality of outlook." This is a further negative aspect.

1. The likely aural amenity and privacy is also comprised by the proximity to the adjoining walkway and reserve in my assessment for which I rely on Mr Little's evidence. Whilst the future development of the reserve may change, there is no compelling evidence to indicate that there would be a positive change in amenity for the subject unit.

1. Therefore on the basis on the existing situation, where people are able to make unlimited use of the formal play area, including the basketball area, I think there is a strong likelihood of an unsatisfactory aural amenity outcome. The proposal does not satisfy the requirements of 4.2.3.11 by incorporating any specific measures to reduce noise entry from users of the reserve or the walkway.

1. With regard to the internal amenity, particularly the ventilation, I think this will be compromised considering the location of the open-able sliding doors adjacent to the open walkway and the recessed open space area, whereby significant trade-offs have to be made in terms of fresh air circulation and privacy and security. In the absence of any smaller openable windows, I consider this a further negative aspect of the proposal.

1. The other relevant amenity consideration is daylight access. Clause 4.2.3.1 of SDCP requires that apartments achieve a minimum of 2 hours direct sunlight in a specified period. But the south facing glass doors and courtyard do not receive any direct sunlight. Even though Mr Nash says that the unit will achieve a "high quality of natural light due to the extensive floor to ceiling glazing", I nevertheless consider this amenity is compromised because the main part of this glass wall is effectively "frosted". In my assessment, the unit will obtain poor solar access.

Security and safety

1. Apart from the previously mentioned matters, I have also considered the evidence of an adjoining unit owner within the subject residential flat building. He expressed concerns about regular anti-social behaviour in the immediate area, which has regularly been reported and there is an apparent inability of local police to respond quickly. This evidence causes me further concern in terms of somewhat 'secluded' main pedestrian entry to the unit and proximity to the reserve.

1. Whilst additional fencing and improved lighting may improve this situation as stated by Mr Nash, no details were submitted to the Court. In light of this higher-level safety risk, I think that it probable that the full height security grills would need to be closed most of the time and this outcome is not consistent with the amenity of surrounding units. Therefore I am otherwise persuaded to rely on Mr Little's opinion that the occupants would appear to be "caged in" and that a satisfactory level of safety and security has not been achieved.

1. In summary then, I rely on the evidence of Mr Little in concluding that the proposed residential unit would experience a low level of amenity in terms of the cumulative effect of the resultant outlook, private open space, solar access, aural impacts. Also, that the occupants would likely be exposed to an undesirable level of safety and security risk. For these reasons, I do not consider the application adequately satisfies the amenity impact mitigation requirements as required in cl 10 of SSLEP and consequently the application fails.

Court orders

1. The Court orders that:

(1) The appeal is dismissed.

(2) Development consent for DA/2012/468 for the proposed change in use of Unit 10, 2 - 6 Tilford Street, Zetland, from commercial to residential is refused.

(3) The exhibits may be returned except for 3, A and C.

R Hussey

Commissioner of the Court

Decision last updated: 20 March 2013