Tuheta v Woollahra Municipal Council

[2009] NSWLEC 1050

Land and Environment Court

of New South Wales

CITATION:	Tuheta v Woollahra Municipal Council [2009] NSWLEC 1050
PARTIES:	APPLICANT Tuheta Pty Limited RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10607 of 2008
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- demolition of existing buildings and the construction of a mixed retail/ residential development - breach of FSR, height, setbacks, soft landscaped area, car parking requirements and consequent impact on the future character of the area - internal amenity
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995
CASES CITED:	Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
DATES OF HEARING:	02/12/08, written submissions 16/02/09
DATE OF JUDGMENT:	24 February 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr G Green, solicitor SOLICITORS Pikes Lawyers RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

24 February 2009

10607 of 2008 Tuheta Pty Limited v Woollahra Municipal Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA804/2007/1 by Woollahra Municipal Council (the council) for the demolition of existing disused church buildings and the construction of a mixed retail and residential development at 733 New South Head Road, Rose Bay (the site).

2 The issues raised by the council relate to breaches of the council's requirements for floor space ratio (FSR), height, setbacks, soft landscaped area, car parking, and the consequent impact on the future character of the area. The council also identified the internal amenity of some proposed residential units as unacceptable.

3 A number of local residents provided evidence on-site. Their concerns raised one or more of the following concerns:

• non-compliance with the councils planning controls (see par 2),
• impact on the streetscape,
• loss of privacy,
• loss of views, and
• the need for a basement car park.

The site

4 The site is Lot 1 in DP 976493. It is rectangular and a corner lot with a 15.24 m northern boundary to New South Head Road, a 40.235 m western boundary to Norwich Road and an area of 613.18 sq m. It is currently occupied by a disused church and church hall, which appear as two adjoining buildings. The site is flat with no significant vegetation.

5 The site is located at the southern end of the Rose Bay commercial centre (the Centre). The Centre contains a variety of commercial and retail buildings with some residential and mixed-use buildings. To the west on the opposite side of Norwich Road are tennis courts associated with the Royal Sydney Golf Club. To the north, on the opposite side of New South Head Road, is an 8 storey mixed use building containing serviced apartments and commercial uses. To the east, with a frontage to New South Head Road is a 4-storey inter-war residential flat building with car parking at grade at the rear of the site. To the south is a 4-storey mixed-use building constructed to the Norwich Road alignment.

The proposal

6 The proposed development has been amended since consideration by the council where it was recommended for approval by council officers but refused by the council.

7 Consent is sought for a 4- storey mixed use building. At ground level, there are two separate shops (67.8 sq m and 122.6 sq m), 12 car parking spaces (including 4 car stacker spaces), landscaping, garbage facilities and entry area for the residential component on the upper levels. The first, second and third floors contain residential development with floor plans comprising a 1 x 3 bedroom unit, a 1 x 2 bedroom unit with study and a 1 x 1 bedroom unit. Lift access is obtained from the ground floor to each of the residential levels.

Relevant planning controls

8 The site is within Zone 3(a) – General Business under Woollahra Local Environmental Plan 1995 (LEP 1995). The proposed development is permissible with consent in this zone. Clause 2 provides objectives for the plan. Clause 11AA provides objectives for the FSR standard and cl 11 provides that the FSR, based on the density map, is a maximum of 2:1 (cl 11(1)) of which the maximum residential FSR is 1:1 (cl 11(2)). Clause 12AA provides objectives for the maximum building height development standard and cl 12 provides that the maximum building height, based on the height map, is 12 m. Clauses 19, 24, 25, 25D and 27 apply but are not relevant to the issues raised by the council.

9 Rose Bay Centre Development Control Plan (the DCP) applies. Part 3 addresses Urban Structure. The site falls within the Transition Area of the Urban Structure. The other parts being Core and Threshold Areas. Part 4.2 provides requirements for the Transition Area of New South Head Road and pt 4.8 provides requirements for Norwich Road. Part 5 provides requirements for Urban design envelopes with Control Drawing 5 providing ground level and upper floor level controls for the site (pt 5.8). Part 6 provides Development Guidelines and Controls including building use (pt 6.2.1), building envelopes (pt 6.3.1), setbacks (pt 6.3.2), visual and acoustic privacy (pt 6.3.8), private open space (pt 6.3.10), above ground open space (pt 6.4.2), solar access and natural daylight (pt 6.5.1), on-site parking (pt 6.6.2) and vehicular access (pt 6.6.3).

Floor space ratio
The evidence

10 The agreed floor area of the proposed building is 1499.3 sq m, consisting of 229.7 sq m of retail floor area and 1269.6 sq m of residential floor area.

The overall FSR is 2.45:1 (compared to 2:1 in LEP 1995). The residential FSR is 2:1 (compared to 1:1 in LEP 1995) although the council did not oppose the variation to the residential floor area requirement.

11 Ms Allison McCabe, the applicant’s town planner, provided an objection under State Environmental Planning Policy No 1–Development Standards (SEPP 1) to show why strict compliance with the FSR development standard in cl 11(1) is unnecessary and unreasonable in this case. She adopts the approach set out in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 and the objectives in cl 11AA for her SEPP 1 objection. The SEPP 1 objection states:

• the proposal is generally consistent with the streetscape character controls in the DCP,
• the proposal is consistent with the aims of the DCP by providing an active streetscape, articulation and a sensitive land use transition,
• the alignment addresses the alignment of the adjoining building at 735 New South Head Road and buildings further to the north,
• a complying development would result in a reduction in bulk and scale but would not appropriately address the street,
• there is no unacceptable impact on the amenity of the public domain,
• any potential impact is limited to the adjoining building at 735 New South Head Road and even a complying development would result in the loss of outlook to the tennis courts from this building,
• the proposal will have no unreasonable impact on water views or outlooks,
• appropriate design measures have been included to protect the privacy of residential areas,
• there are no overshadowing impacts,
• the provision of landscaping is superior to that required by the DCP,
• the scale and setbacks of the building are consistent with surrounding development, as is the height,
• the setbacks and the proportion of the street frontage are consistent with the character and existing development, and
• the corner lot provides a greater opportunity to locate building form along two street frontages.

12 For these reasons, Ms McCabe concludes that strict compliance with the FSR development standard is unnecessary and unreasonable in this case and that the SEPP 1 objection is well founded.

13 Mr Anthony Rowan, the council’s consultant town planner comes to a different conclusion. He states that the additional floor area (above the 2:1 FSR requirement) results in a greater part of the permissible envelope being filled. Despite this, the front part of the site where development is expected is left as a void. As a consequence, the floor space has been concentrated into the centre and rear of the site. Also, the area identified in the DCP to provide relief in the development form between sites, (defined as the soft landscaped area) is reduced significantly and substituted by a less practical, more linear landscaped area.

14 In Mr Rowan’s opinion, the development fails to satisfy the objectives of the FSR development standard. The building form does not "achieve the desired future character objectives" of the Transition Area in that the proposed development does not reflect the building envelope control (objective (b)), the outlook from the upper floor of 735 New South Head Road is unacceptably impacted on (objective (c)) and the proposal will not reflect the existing character of the area. There is minimal articulation to the Norwich Street frontage with development generally built to the street boundary where there is the perception of a continuous street wall with minimal relief (objective (d)).

The assessment approach

15 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten, at par 26, where a number of questions are asked. 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. For this question, the parties appropriately adopt cl 11AA, which states:

11AA Objectives of floor space ratio standards
The objectives of the floor space ratio standards set by clause 11 are as follows:
(a) to set the maximum density for new development,
(b) to control building density, bulk and scale in all residential and commercial localities in the area in order to achieve the desired future character objectives of those localities,
(c) to minimise adverse environmental effect on the use or enjoyment, or both, of adjoining properties, and
(d) to relate new development to the existing character of the surrounding built and natural environment as viewed from the streetscape, the harbour or any other panoramic viewing point.

Note. The maximum permissible floor space ratio is not “as of right”. To achieve the maximum permissible floor space ratio, development must satisfy other relevant controls applicable to the land concerned .

16 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.

17 This question also asks does compliance with the development standard tends to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state:

5.The objects of this Act are:
(a) 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.

18 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.

Findings
Bulk, scale, character (Objectives (b) and (d)).

19 The principal planning document that addresses the desired future character objectives for the site is the DCP. There are a number of controls that establish the desired future character. Part 3.1 describes the Transition Area in the following terms:

The Transition Areas lies outside the Core in the vicinity of the recreational areas and residential zones, and an important buffer to these areas. They do not contain the same level of retail activity as the Core but provide residential and commercial uses. They are generally characterised by less continuous building frontage and a stronger landscape presence. The Transition Areas should provide a graduation in development intensity from the Core to the residential and recreational areas.

20 Part 4.2 describes the strategy for the Transition Area on New South Head Road in the following terms:

Create a transition between the Rose Bay Centre core and the recreational/landscaped area towards Lyne Park, with a portion of the street defined by street trees and a discontinuous wall of buildings on the harbour side.

21 Part 4.8 describes the strategy for Norwich Road in the following terms:

Create a defined edge, in terms of both landscape and built form definition, between the Centre and the recreational/landscape area in the vicinity of Lyne Park and the Royal Sydney Golf Course.

22 Drawing 5 in Part 5.8 identifies control drawings which show building envelopes for each site within the Rose Bay Centre. For the site, at ground level, Drawing 5 provides for a 2.4 m building articulation area to New South Head Road and a 1.2 m building articulation area to Norwich Road. A 6 m x 12 m landscaped area is shown in the south-east corner together with a 1.2 m area for building articulation on the north edge of the landscaped area. The upper level controls provide identical areas for building articulation but an increased setback of 12 m plus an additional 1.2 m area for building articulation on the west from the roof terrace.

23 The preferred building line at the ground level is at the property boundary but is qualified in pt 5.2 by the words "Build minimum 50%". The upper floor levels also has a preferred building line at the property boundary with identical requirements to the ground level with the exception of the corner where approximately 12 m on each street frontage at the corner is qualified in pt 5.2 by the words "Build 100%".

24 Part 6 provides further explanation on the desired urban character. This part provides that buildings in the Transition Areas are concentrated towards the street and built on or close to the street alignment and accommodating private gardens at the rear in many places (pt 6.3.1). In relation to setbacks for the Transition Area, the architectural typology is more varied and includes freestanding buildings, with relatively small side setbacks. The prevalent building alignment is generally close to the street, accommodating small front gardens and entry porches in some places. Corner buildings throughout the Centre are built to both street alignments, providing strong corner definition (pt 6.3.2).

25 For building articulation, the DCP states that the street frontage establishes the relationship between the building and the street, through the use of entry porches, loggias, bay windows and the like. Buildings facades can be articulated to create a strong street address, and in which the character of the street. Building articulation should respond to environmental conditions such as orientation, noise, breezes, privacy and views, through the use of appropriate shading devices, noise barriers, privacy screens, and the careful location of balconies, terraces and loggias (pt 6.3.3).

26 If the proposed development is compared to these requirements then I generally agree with the conclusions of Ms McCabe on bulk, scale and character, except for the areas of height and articulation of the Norwich Road elevation but these are not necessarily fatal to the application for reasons set out later in the judgment.

27 The DCP dictates a building form that has a strong presence because of its corner location. This manifests itself in nil setbacks at the upper levels at the corner and the nil setbacks for the whole length of the Norwich Road frontage. The proposed development provides greater setbacks than that required by the DCP at the New South Head Road frontage and I agree that this is desirable as it removes, to some extent, the sense of enclosure for the adjoining development at 735 New South Head Road, particularly for those units with balconies at the street frontage. Importantly, the increased setback is consistent with objective (d) in that it relates new development to the existing character of the surrounding built …environment.

28 I am also mindful that while the FSR requirements apply to all sites within the Centre, the building envelope requirements for the site appear to provide the opportunity for a greater floor space through the nil setbacks at the upper level and the absence of a designation that requires development to a maximum of 50% of occupiable area on the upper levels (as required for the majority of other sites). While this does not necessarily entitle the site to a greater floor area, it is nonetheless a relevant factor in considering floor space above the FSR requirement.

Articulation

29 In my view, Mr Rowan correctly criticises the articulation of the building along the Norwich Road frontage where he states that the proposed limited articulation provided is further diminished by a heavy reliance on screen features that are likely to result in a box-like appearance to the upper storeys of the development. Balconies, that provide some visual relief, have the potential to be screened off, as do windows. In his opinion, the Norwich Road frontage should not be screened from view, but integrated, through design into the centre.

30 I agree with Mr Rowan that the extensive use of screens in the Norwich Road frontage should be amended to remove the dominance of screens from this frontage so as to provide a more visually interesting building facade through greater articulation and design. The DCP provides the setbacks and articulation zones for street frontages. In this elevation, a 1.2 m articulation zone is provided together with a preferred building line on the street alignment but with the proviso that the building is constructed a minimum of 50% on this preferred building line. In my view, this clearly suggests the need to provide some articulation of the facade but allowing some discretion how this can be achieved through the use of a setback to Norwich Road. The DCP suggests that elements such as loggias, bay windows and the like should be used to establish a relationship between the building and the street. I do not accept that the current treatment of the Norwich Road facade satisfactorily creates this relationship, largely through the over-use of screens and the general reliance on a consistent setback to Norwich Street.. The generally southwest orientation of this frontage would also suggest that the amount of screens are unnecessary for sun protection. I am satisfied that the amendments to this frontage can be achieved through a deferred commencement condition of consent.

Impact on adjoining properties (Objective (c)).

31 Any impacts on adjoining properties are limited to the existing four storey residential flat building at 735 New South Head Road. The units located at the upper levels and near the street frontage currently enjoy views over the existing single storey church building to the tennis courts associated with the Royal Sydney Golf Club. These views will be lost with the construction of the proposed development although it must be noted that any redevelopment of the site, even a development with a height that is below the maximum height specified in the DCP, would remove all views from the adjoining residential flat building. Ms McCabe calculates that a building would have to be around 2 m below the 12 m height limit to retain the views from the topmost floor of the adjoining residential flat building. While I accept that the view loss is a major concern of the owners of the affected units; any development that maintained the existing views would have a form that would be inconsistent with that anticipated by the DCP.

32 The setback to the residential flat building at 735 New South Head Road varies with a nil setback for Shop 1 (around 8.0 m) and a setback around 3 m for the remaining 26 m of building. This is inconsistent with Drawing 5 where the nil setback extends for a distance of some 24 m. Notwithstanding this inconsistency, I accept that the proposed setback is more desirable as it provides a greater separation between the proposed building and the adjoining residential flat building. Given the requirements in Drawing 5 on setbacks, I am satisfied that pt 6.3.8 of the DCP is satisfactorily addressed.

33 If the existing residential flat building was in poor condition or redevelopment was contemplated, I would accept that stricter compliance with the DCP would be appropriate. As there was no evidence to suggest that this was the case, the greater setback between the buildings is more appropriate as it provides better amenity for the adjoining residents. I am also mindful of objective (d) in that it relates new development to the existing character of the surrounding built …environment.

34 I have also taken into consideration the approval (under the DCP) of the adjoining development at 28 Norwich Road. The DCP identifies an area of soft landscaping generally at the rear of each site in the New South Head Road, Newcastle Street, Richmond Road and Norwich Road block. The adjoining development at 28 Norwich Rd does not comply with the DCP requirements for soft landscaping and provides little landscaping at the rear of the site. The proposed development also does not strictly comply with the location of the soft landscaping but attempts to align the building with the building on the adjoining site. The soft landscaping provided with the proposed development is around the same area as required under the DCP but in a different configuration. For reasons mentioned earlier in the judgement, I accept that this provides a greater setback to the adjoining residential flat building and a better relationship between the two buildings. The approval of the development at 28 Norwich Road has weakened the integrity of the soft landscaping provision in the DCP and the overall concept of providing a core of central soft landscaping area for the block. I do however accept that the strict enforcement of the DCP is problematic when existing development has to be considered, as required by objective (d) although I am satisfied that the proposed soft landscaping area does not totally abandon the overall philosophy adopted by the DCP.

35 Overall, I accept that the general form of the building is largely that anticipated by the DCP in terms of bulk, scale and character in that it is 4 storeys, largely satisfies the setback and building articulation areas except in the area of articulation, which is to be addressed through conditions requiring amendments to the Norwich Road facade. I also accept that the proposed development minimises adverse environmental effect on adjoining properties and that the development relates appropriately to the existing character of the area. The issue of height is acceptable for the reasons set out below.

36 For the above reasons, I find that strict compliance with the FSR development standard in cl 11(1) is unnecessary and unreasonable in this case and that the SEPP 1 objection is well founded.

37 I have read the SEPP 1 objection to the FSR development standard in cl 11(2) and concur with the conclusions. Consequently, I find that strict compliance with the development standard is unnecessary and unreasonable in this case and that the SEPP 1 objection is well founded.

Height
The evidence

38 The height of the proposed building on the application plans (Revision F) is 14.4 m. This breaches the 12 m height limit by 2.2 m. The issue of building height was complicated by the need to consider potential flooding impacts that arose as a late issue. As I understand, the issue of potential flooding was not a matter that taken into consideration in the preparation of the DCP and the consequent 12 m height limit.

39 The parties agreed to appoint Mr Drew Bewsher as the parties single expert on the flooding issue. Mr Bewsher produced a report however the conclusions required further clarification. His statement did not accurately identify the 100-year flood level for the site because of insufficient flooding data. The 100-year flood level for the site was estimated by Mr Bewsher at 4.5 m AHD. Alternatives were provided at the hearing to address the flooding issue (Revision G plans) however, I was not satisfied that the impact of potential flooding was satisfactorily addressed at the hearing to allow the matter to be finalised.

40 At a Mention on 14 January 2009, the parties were requested to provide further details on the effects of flooding on the building. Further written details were provided on 6 February 2009 and 16 February 2009 including a supplementary report from Mr Bewsher. With the assistance of the council and flood modelling, Mr Bewsher confirmed that the 100-year flood level for the site was 4.5 m AHD. He identifies the principal changes between the Revision F and Revision G plans in a table that shows the level of Shops 1 and 2 being reduced by 0.55 m to 4.10 m AHD and lesser changes to the garbage areas, lift pedestrian entry and car park. Mr Bewsher notes that all revised levels in the Revision G plans are below the 100-year flood level for the site and consequently he cannot support the Revision G plans. The Revision F plans, on balance are acceptable to Mr Bewsher providing that there was sufficiently improved access from the footpath to the shops. These details can be appropriately provided through a deferred commencement condition.

41 On this basis of Mr Bewshers supplementary report, the applicant sought to relies on the Revision F plans.

42 Ms McCabe provided a SEPP 1 objection to show why strict compliance with the height development standard is unnecessary and unreasonable in this case. She adopts the approach in Winten and the objectives in cl 12AA for her SEPP 1 objection. The objectives are:

12AA Objectives of maximum building height development standards
The objectives of the maximum building height development standards set by clause 12 are as follows:
(a) to minimise impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City skyline,
(b) to provide compatibility with the adjoining residential neighbourhood,
(c) to safeguard visual privacy of interior and exterior living areas of neighbouring dwellings,
(d) to minimise detrimental impacts on existing sunlight access to interior living rooms and exterior open space areas and minimise overshadowing,
(e) to maintain the amenity of the public domain by preserving public views of the harbour and surrounding areas and the special qualities of streetscapes.
Note. The maximum permissible building height is not “as of right”. To achieve the maximum permissible building height, development must satisfy other relevant controls applicable to the land concerned.

43 The SEPP 1 objection states:

• there will not be any unreasonable the impact on the views from surrounding dwellings or views towards Sydney Harbour,
• the scale of the building is consistent with surrounding development, being typically 3 and 4 storey buildings,
• the height is comparable to nearby residential flat buildings,
• the proposal is generally consistent with the building envelope controls in the DCP,
• the anticipated 4-storey development cannot be achieved within the 12 m building height requirement,
• there are no privacy impacts associated with the proposed development
• there are no significant overshadowing impacts on adjoining residential properties,

44 Mr Rowan states that the expectation of the applicant for a 4-storey development is flawed as the DCP anticipates this can be provided within the 12 m height limit. If greater floor to ceiling heights are pursued, then there is no automatic right to achieving 4 storeys. There is no urban design basis to support the wall height some 1.6 m to 1.9 m above the adjacent structures, which are both 4 storeys in height. When combined with the excess floor space, some visual relief in the centre of the site could have been achieved to enable some through viewing to the Royal Sydney Golf Course. The envelope controls provide an option for development to be constructed to the edges of the site, however it is not to be assumed as the best development approach. Even though the envelope extends along the side boundary facing 735 New South Head Road, this does not in itself indicate that the bulk of development as viewed from neighbouring apartments is appropriate. The wall facing the northern boundary will be bulky and of excessive height to the neighbouring property.

Findings

45 There was a suggestion at the hearing by Mr Rowan that the proposed development should be limited to 3 storeys, thereby satisfying the height requirement and also providing a reduced floor area that would be closer to the FSR requirement. In my view, a building form consisting of 3 storeys would be clearly inconsistent with that anticipated by the DCP. The anticipated 4-storey construction of development on the site is shown in the cross-section in Pt 4.2 and 4.8. A 3-storey form could potentially have a greater impact on the future character of the Centre than the variation to the 12 m height limit. In my view, greater consistency with the DCP would be achieved through maintaining the 4-storey building form.

46 I note that the council has approved nearby buildings that exceed the 12 m height limit. Ms McCabe, in her SEPP 1 objection, cites the approval of variations to the 12 m height standard at 650-654 New South Head Road (13.34 m) and 7-9 Dover Road (14.2 m).

47 Overall, I accept that the height of the building is acceptable when considered against the cl 12AA objectives in that it creates no unacceptable view loss, is compatible with the adjoining residential development, minimises private amenity impacts and maintains the amenity of the public domain.

48 For these reasons, I find that strict compliance with the height development standard is unnecessary and unreasonable in this case and that the SEPP 1 objection is well founded.

Internal amenity
The evidence

49 Ms McCabe tests the proposed development against the Residential Flat Design Code. The relevant requirements are that 70% of units should receive 3 hours of sunlight in midwinter or 2 hours of sunlight in dense urban areas. Single aspect (SW-SE) units should be limited to a maximum of 10% of the total units and 60% of units should be crossed ventilated and building depths should range from 10 m to 18 m. Ms McCabe states that the proposed development provides 75% cross-ventilated units and all units meet building depth requirements. Additionally, 75% of kitchens are naturally ventilated and 75% of the units receive 3 hours of sunlight at midwinter although not to all balconies.

50 Ms McCabe states that the orientation of units is acceptable even though a reorientation of the units to the north would be possible but would result in unacceptable privacy impacts to adjoining development. Also, the orientation of the lot and access to views has been given greater emphasis over the need to provide sunlight to all balconies. Ms McCabe suggests that a larger or additional skylight to Unit 8 would significantly improve solar access to this unit.

51 Mr Rowan states that the three centrally located single aspect apartments do not receive direct sunlight in winter. Additionally, two of the three balcony areas are to be further constrained, either wholly or in part by louvres and shutters screens, further reducing the potential for essential daylight. The central units also do not achieve an appropriate level of cross ventilation. The size, and location of the highlight window adjacent to the door into the communal lift lobby is a poor design. Mr Rowan further states that the proposed development does not provide communal open space. While the apartments have balconies, there is no resident area for outdoor recreation, drying of clothes or the like. The linear nature of the proposed external recreational area provides almost no utility for future residents.

Findings

52 On this issue, I agree with the conclusions of Ms McCabe. The site has its longest frontage facing southwest. To limit the number of balconies in this frontage would be to restrict the pleasant outlook over the adjoining tennis courts and Rose Bay, at a more acute angle. When this is balanced against the need to provide direct sunlight to the balconies, I agree with Ms McCabe that preference should be given to the provision of views over the need for direct sunlight to any balconies for this site. I have also taken into consideration that while the balconies do not receive direct sunlight in midwinter, parts of the units do receive direct sunlight at this time. I did not understand there to be any dispute that the proposed balconies did not satisfy the minimum areas in pt 6.4.2 of the DCP. I note that pt 6.5.1 of the DCP requires “good solar access to both the internal and external living spaces” and not just balconies.

53 The close proximity of the site to the harbour foreshore and open space areas around Rose Bay must also be considered in the assessment of the private open space and communal open space needs of future occupants. The provision of balconies in the Norwich Road elevation also provides greater opportunities for greater levels of articulation and fenestration, consistent with the streetscape provisions in the DCP.

54 While not optimal, I accept that the level of cross ventilation of the units is acceptable.

Car parking
The evidence

55 Mr Rowan states that the amount of parking provided is excessive for the number of units. The result is that the parking is not discreet and dominates the street edge. It also increases the volume of the development through the use of the stackers. As the DCP seeks to "discourage over-reliance on cars" and as Rose Bay is well serviced by ferries and buses, the proposed 12 car parking spaces increases the volume of the building and diminishes more strategic opportunities such as the reduction in potential for an active street edge for retail purposes and diminishes the quality of landscaped open space along the Norwich Road frontage.

56 Ms McCabe states that the 12 car parking spaces are not allocated for the retail uses but solely for the residents in the proposed units. The DCP provides for a "maximum" of 13.5 spaces for the residential use. The provision of car parking for the retail use is addressed through a s 94 contribution. The DCP provides the option for a lesser amount of car parking however it does not states that no car parking shall be provided for residential uses.

57 Mr John Coady, a traffic engineer, provided further evidence on car parking, for the applicant. In his assessment, all residential units should have access to of least one car parking space, particularly the 2 and 3 bedroom units. The minimum number of spaces that the development should provide is 8, being one parking space for each of the 2 and 3 bedroom units and two spaces for the 1 bedroom units.

Findings

58 I accept that the provision of 12 car parking spaces is appropriate for the proposed development and is in accordance with pt 6.6.2 and pt 6.6.3 of the DCP. The evidence of many of the residents who gave evidence was the inadequacy of car parking in the general area. As the DCP does not provide a minimum number of car parking spaces but rather a maximum number of spaces, it is appropriate that some car parking spaces be provided on site for the future residents.

59 The assessment by Mr Coady is sound and the provision of some car parking does not offend the DCP requirement of discouraging the over-reliance on motor vehicles. I am satisfied that the number of car parking spaces is not excessive for the number and size of the units proposed. I am also satisfied that the streetscape appearance of the carpark has been suitably addressed through the architectural design of the ground floor area of the Norwich Road frontage so as to minimise its affect on the streetscape.

Orders

60 The Orders of the Court are:

1. The appeal is upheld.

2. DA804/2007/1 for the demolition of existing disused church buildings and the construction of a mixed retail and residential development at 733 New South Head Road, Rose Bay is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 4, 5 and A.

________________
G T Brown
Commissioner of the Court