Urban Link Pty Ltd v Lane Cove Council

Case •

[2013] NSWLEC 1157

•

21 August 2013

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Urban Link Pty Ltd v Lane Cove Council [2013] NSWLEC 1157
Hearing dates:5-7 and 15 August, 2013
Decision date: 21 August 2013
Jurisdiction:Class 1
Before: O'Neill C
Decision:

1. The appeal is dismissed.

2. Development Application No. 13/24 for the demolition of five dwelling houses and the construction of a residential flat building containing 64 dwellings and basement car park is refused.

3. The exhibits, other than exhibits 4 and M, are returned.

Catchwords: DEVELOPMENT APPLICATION: residential flat building; design quality; internal amenity; number of storeys; fire protection zone; accessible parking spaces.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Category:Principal judgment
Parties: Urban Link Pty Ltd (Applicant)
Lane Cove Council (Respondent)
Representation: Counsel
Mr Chris McEwen SC (Applicant)
Mr Mark Seymour (Respondent)
Solicitors
Gadens Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)
File Number(s):10223 of 2013

Judgment

  1. COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 13/24 (the proposal) by Lane Cove Council (the Council) for the demolition of five dwellings and the construction of a four and five storey residential flat building with basement parking, at 62-70 Gordon Crescent, Lane Cove (the site).

  1. The appeal was subject to mandatory conciliation on 30 May 2013, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached during the conciliation conference, it was terminated, pursuant to s34(4) of the LEC Act.

Issues

  1. The Council's contentions in the matter can be summarised as:

  • The amenity of the apartments on the ground level at the rear of the building is compromised by being below natural ground level;
  • The amenity of too many apartments is compromised by their single, southern aspect and/or their lack of cross ventilation;
  • The proposal exceeds the four storey limit and the fifth storey does not comply with the required setback; and
  • The proposal is too wide and is not sufficiently articulated to overcome the impact of the significant width of the street front elevation.

  1. The Applicant disputes a (without prejudice) condition of consent 99 Road Widening Contribution requiring the payment of $50,091.72 towards the cost of widening the pavement of Gordon Crescent between Elizabeth Parade and Girraween Avenue.

The site and its context

  1. The site is located on the northern side of Gordon Crescent, with a frontage of 85.19m and a depth ranging between 34.36m and 42.59m. The site has an area of 3256.4sqm. The site is located on a south-facing slope and it falls from its north-western corner at the rear to the south-eastern corner. The site contains five single storey dwellings, each with access from Gordon Crescent.

  1. There are dwelling houses to the west of the proposal. There is a residential flat building currently under construction to the east of the proposal and extending at the rear to Mowbray Road West, at 72-74 Gordon Crescent and an existing residential flat building further to the east at 76-82 Gordon Crescent. There are dwelling houses to the rear of the site, fronting Mowbray Road West.

  1. Batten Reserve is on the southern side of Gordon Crescent, opposite the site.

Background and the proposal

  1. On the second day of the hearing, the Applicant sought to amend the proposal in response to the agreement of the bushfire experts that a 12.6m front setback would provide an acceptable asset protection zone (APZ) of 24m, when measured from the southern kerb of Gordon Crescent (in accordance with the requirement of the Lane Cove Development Control Plan 2010, Part C Residential Localities, Locality 6 - Mowbray Precinct, provision h). This required adjusting the position of sections of the southern façade of the proposal further to the north, which resulted in some adjustments to the layout of apartments and some smaller apartments being amalgamated to form three bedroom apartments. One Ground Floor apartment was deleted.

  1. Leave was granted by the Court for the applicant to rely on the amended plans on the basis agreed by the parties, pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979.

  1. The amended proposal resulted in a proposal four and five storeys high, with two levels of basement parking, containing a total of 64 apartments consisting of 32 one bedroom apartments, 28 two bedroom apartments and 4 three bedroom apartments and a communal roof top terrace.

Planning Framework

SEPP 65

  1. The proposal is subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) at cl 4(1)(a).

  1. Consideration is to be given to the design quality of the residential flat development when evaluated in accordance with the design quality principles, at cl 30(2)(b) of SEPP 65 and the publication Residential Flat Design Code (RFDC) at cl 30(2)(c).

  1. The relevant aims of SEPP 65 include, at cl 2:

(1) This Policy aims to improve the design quality of residential flat development in New South Wales.
(2) This Policy recognises that the design quality of residential flat development is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design.
(3) Improving the design quality of residential flat development aims:
(a) to ensure that it contributes to the sustainable development of New South Wales:
(i) by providing sustainable housing in social and environmental terms, and
(ii) by being a long-term asset to its neighbourhood, and
(iii) by achieving the urban planning policies for its regional and local contexts, and
(b) to achieve better built form and aesthetics of buildings and of the streetscapes and the public spaces they define, and
(d) to maximise amenity, safety and security for the benefit of its occupants and the wider community

  1. The design quality principles of SEPP 65 are at cl 7-18. The design quality principles relevant to the proposal are:

Principle 1: Context
Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area.
Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area.
Principle 2: Scale
Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings.
Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area.
Principle 3: Built Form
Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements.
Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.
Principle 7: Amenity
Good design provides amenity through the physical, spatial and environmental quality of a development.
Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility.
Principle 10: Aesthetics
Quality aesthetics require the appropriate composition of building elements, textures, materials and colours and reflect the use, internal design and structure of the development. Aesthetics should respond to the environment and context, particularly to desirable elements of the existing streetscape or, in precincts undergoing transition, contribute to the desired future character of the area.

  1. Clause 30A(2) of SEPP 65 states:

(2) Nothing in this clause permits the granting of consent to a development application if the consent authority is satisfied that the proposed development does not demonstrate that adequate regard has been given to the design quality principles in Part 2 of this Policy.

  1. The RFDC supports the ten design quality principles identified in SEPP 65 and gives greater detail in how to achieve these principles in development proposals (Exhibit 3, ff 193 - 330).

  1. The RFDC objectives for apartment layout are to ensure that the spatial arrangement of apartments is functional and well organised; to ensure that apartment layouts provide high standards of residential amenity; to maximise the environmental performance of apartments and to accommodate a variety of household activities and occupants' needs (RFDC page 67).

  1. The relevant RFDC rules of thumb for building configuration are that single aspect apartments should be limited in depth to 8m and the back of a kitchen should be no more than 8m from a window and buildings not meeting these minimum standards must demonstrate how satisfactory daylighting and natural ventilation can be achieved, particularly in relation to habitable rooms (RFDC page 69).

  1. The relevant RFDC rules of thumb for daylight access include that living rooms and private open spaces for at least 70% of apartments in a development should receive a minimum of three hours direct sunlight between 9am and 3pm in mid winter and in dense, urban areas a minimum of two hours is acceptable and that the number of single-aspect apartments with a southerly aspect should be limited to a maximum of 10% of the total units proposed. Developments, which seek to vary from the minimum standards, must demonstrate how site constraints and orientation prohibit the achievement of these standards and how energy efficiency is addressed (RFDC page 85).

  1. The RFDC rules of thumb for natural ventilation include that 60% of apartments should be naturally cross ventilated and 25% of kitchens within a development should have access to natural ventilation (RFDC page 87).

  1. The RFDC objectives for building facades include promoting high architectural quality in residential flat buildings. The better design practice key points for facades includes a requirement that facades are composed with an appropriate scale, rhythm and proportion, which respond to the building's use and the desired contextual character (RFDC page 89).

Lane Cove Local Environmental Plan 2009 (LEP 2009)

  1. The site is within the R4 Zone - High Density Residential and the proposal is permissible with consent.

  1. The relevant aims of LEP 2009, at cl 1.2(2)(c), are:

in relation to residential development, to provide a housing mix and density that:
(i) accords with urban consolidation principles, and
(ii) is compatible with the existing environmental character of the locality, and
(iii) has a sympathetic and harmonious relationship with adjoining development,

  1. The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone, at cl 2.3(2). The objectives of the R4 Zone are as follows:

· To provide for the housing needs of the community within a high density residential environment.
· To provide a variety of housing types within a high density residential environment.
· To enable other land uses that provide facilities or services to meet the day to day needs of residents.
· To provide for a high concentration of housing with good access to transport, services and facilities.
· To ensure that the existing amenity of residences in the neighbourhood is respected.
· To avoid the isolation of sites resulting from site amalgamation.
· To ensure that landscaping is maintained and enhanced as a major element in the residential environment.

  1. The maximum height development control for the site is 14.5m, as shown on the Height Map, pursuant to cl 4.3 of LEP 2009 and the maximum floor space ratio (FSR) development control for the site is 1.6:1, as shown on the FSR Map, pursuant to cl 4.4 of LEP 2009.

  1. On 18 January 2013, the Lane Cove Height of Buildings Map was amended to increase the maximum height development control for the Mowbray Road precinct from 12m to 14.5m and the FSR Map was amended to decrease the maximum FSR development control for the Mowbray Road precinct from 2.1:1 to 1.6:1 (LEP 2009 Amendment 7).

Lane Cove Development Control Plan 2010 (DCP 2010)

  1. DCP 2010 applies to all land within the Lane Cove LGA.

  1. DCP 2010 states, at 1.4 under Block Plans and again in Section B.3, 3.1 under Block Plans, the following in relation to achieving the FSR development control for a site:

Council will assess development applications on a merit-based, flexible basis, taking into account factors including the realistic redevelopment potential/timeframe of other sites in the vicinity. A priority will be the achievement of the floor space in the LEP, notwithstanding the DCP's provisions and controls.

  1. C.3 Residential Flat Buildings, includes the following relevant general objectives at 3.1:

1. To achieve a reasonable level of amenity for the residential flat buildings, neighbouring properties and the surrounding area.
4. To provide opportunities for lifestyle choice and dwelling mix.

  1. 3.3 Building Depth, states that the maximum building depth, exclusive of balconies, is 18m and the objectives for building depth are:

1. To ensure that the bulk of the development is in scale with the existing or desired future context.
2. To provide adequate amenity for building occupants in terms of sun access, daylight and natural ventilation.
3. To provide for dual aspect dwellings.

  1. 3.4 Building Width, states that the maximum building width fronting the street shall be 40m and that greater widths may be permissible if the proposed building articulation is satisfactory in the streetscape. The objectives for building width are:

1. To avoid large continuous building bulk and massing.
2. To ensure that residential flat building responds to the character of the area.

  1. 3.5 Setbacks, states that the side and rear setbacks are to be 6m for 4 storeys and 9m for 5-8 storeys. The objectives for setbacks are:

1. To establish the desired spatial proportions of the street and define the street edge and provide a transition between public and private space.
2. To assist in achieving visual privacy to dwellings from the street.
3. To allow for street landscape character.

  1. 3.15 Solar Access includes the following provisions:

a) Habitable rooms in at least 70 percent of dwellings in high density residential developments should receive a minimum of three hours direct sunlight between 9am and 3pm on 21 June, in total between any portions of those rooms. A reasonable proportion of both the common and private open space in those sites is also to receive sunlight during that period, according to the circumstances of the site.
b) The number of single-aspect dwellings with a southerly aspect (SW to SE) should be limited to a maximum of 10 percent of the total dwellings within a high density residential development. Developments varying from the minimum standard due to site constraints and orientation must demonstrate how energy efficiency is addressed.
d) Council may accept a reduction in solar access for the subject site and adjacent development if the topography and lot orientation (as distinct from a preferred design) are such that the standard is considered unreasonable.

  1. 3.16 Natural Ventilation, states that 60% of dwellings should be naturally cross ventilated and has the following objectives:

1. To ensure that dwellings are designed to provide all habitable rooms with direct access to fresh air and to assist in promoting thermal comfort for occupants.
2. To provide natural ventilation in non-habitable rooms, where possible.
3. To reduce energy consumption by minimising the use of mechanical ventilation, particularly air conditioning.

  1. DCP 2010 at 1.4 states the following in relation to Localities:

Provisions for special areas, referred to as Localities are contained with Parts C, D and E of DCP 2010 and prevail over other provisions in the DCP.

  1. The site is located within Locality 6 - Mowbray Precinct (Part C - Residential Localities). The objectives for the public domain within this precinct are:

1. To preserve and enhance the landscape character of the area and provide for future significant vegetation, such as large and medium sized trees.
2. To minimise development impacts, such as stormwater runoff and bushfire measures, on Batten Reserve & Stringybark Creek.
3. To protect the natural environment including the Batten Reserve Bushland.
4. To enhance the amenity of the existing and future residents in the precinct.
5. To provide an appropriate transition to the adjoining residential uses.
6. To retain the treed outlook onto the Precinct from the dwellings to the south,
7. To provide good quality communal open spaces for the residents.

  1. A maximum number of residential storeys applies, relating to the LEP height limit, which is 4 residential storeys for the LEP maximum height of 14.5m. Other relevant provisions include:

b) Any 5th storey is to have a maximum of 50% floor area of the storey below, and be set back 3m from that lower storey's building façade line.
c) A minimum deep soil area of 40% of the site is to be provided for residential flat buildings.
d) Tree retention, and the planting of new trees, is to be encouraged. Driveway design should avoid tree loss on Council land.
h) The asset protection zone (APZ) is to be measured from the top of the kerb on the side of the road adjacent to the reserve (where there is a perimeter road) or measured inwards from the residential lot boundary adjacent to the reserve (where there is no perimeter road).

The Mowbray Road Precinct, Lane Cove North Master Planning Study

  1. The Mowbray Road Precinct, Lane Cove North Master Planning Study (the Master Planning Study) was prepared by JBA Planning November 2011, on behalf of Lane Cove Council, to inform a planning proposal by the Council to rezone the R4 Zone to a mix of high to low density and environmental zones. At the time of the Master Planning Study, the study area (bounded by Mowbray Road West and Batten Reserve) permitted a maximum FSR of 2.1:1 and building height of 12m.

  1. The Master Planning Study identifies (in the Executive Summary and again at 3.12) that the bushfire risk is the most significant constraint of the redevelopment potential of the study area and the Master Planning Study concludes that most of the study area is capable of accommodating high density residential development, subject to appropriate bushfire protection measures, including an asset protection zone (APZ) along the southern side of the study area.

  1. The recommended planning principles for the study area, at 5.3, include retaining the R4 zone across the majority of the study area, permitting a partial 5th storey on land at the western end of the study area (which does not include the site) and reducing the maximum floor space ratio permitted within the R4 from 2.1:1 to 1.6 and 1.8:1.

  1. The Master Planning Study relevantly states the following in relation to building heights, at 5.4:

In order to achieve the four residential storeys within this height limit, the residential buildings being proposed within the Study Area are being sited low into the ground often with the lower level apartments below natural ground level and large amounts of excavation. Secondly, in order to avoid non-compliance with the height controls, the tops of the buildings lack articulation or roof features to the detriment of the design quality and streetscape appeal of the buildings.
In order to provide greater design flexibility, a maximum building height of 14.5m is recommended for that part of the Study Area nominated as 4 storeys. The 14.5m allows for 4 residential floors (12m) plus an allowance for basement extrusions and roof features/plant. To ensure a 5th storey is not accommodated, it is recommended that Part C of DCP 2010 be amended to be explicitly as to the maximum number of storeys that may be accommodated within the 14.5m height limit.

  1. The Master Planning Study states the following in relation to Floor Space Ratios, at 5.4:

LEP 2009 provides an FSR of 2.1:1 in the R4 Zone. There is a disconnect with the FSR and the maximum permitted building height of 12m (4 storeys). This is evident in the assessment of the existing DAs that have been submitted within the Study Area which are achieving an average of only 1.7:1.
To provide an FSR that is more consistent with the permitted maximum building heights and the other recommendations of this Study, the following maximum FSRs are recommended: 1.6:1 for the 4 storey apartment areas; 1.8:1 for the 5 storey apartment areas.
Davis and Langdon Pty Ltd has reviewed the feasibility of this development potential.
Based on these assumptions, Davis and Langdon P/L consider that a 1.6:1 FSR is a reasonable density to target from a financial perspective. It provides developers scope to acquire sites at process above $1,900 m2 and maintain project feasibility. Conversely a lower density risks a downturn in market conditions making development marginal and/or would encourage lower quality development.

Public submissions

  1. Six resident objectors provided evidence on site at the commencement of the hearing. Their concerns can be summarised as:

  • The proposal is an overdevelopment - it is too high, the lowest floor is below natural ground level and the building is almost double the length permitted by the controls;
  • There are too many stacked parking spaces and as these are inconvenient, it will encourage residents to park in the street;
  • The proposal, if approved, would set a undesirable precedent;
  • The proposal should respect the required asset protection zone for bushfire;
  • Batten Reserve is habitat for local flora and fauna, of which some are identified as endangered species; and
  • The sewerage system in the area is inadequate.

Expert evidence

  1. Expert evidence was provided on behalf of the Applicant by Mr Wayne Tucker (bushfire), Mr Craig Hazell (traffic), Mr Stephen King (amenity) and Mr Andrew Darroch (planning).

  1. Expert evidence was provided on behalf of the Respondent by Mr Graham Swain (bushfire), Mr Tim Sullivan (traffic), Mr Steven Layman (amenity) and Mr Harvey Sanders (planning).

Bush fire protection

Evidence

  1. Following the joint conferencing of the bushfire experts, they agreed that the proposal is acceptable in terms of bushfire protection on the following basis:

  • The southern façade is setback a minimum of 12.6m from the southern boundary (excluding balconies), as this will provide a 24m APZ when measured from the southern kerb of Gordon Crescent. The plans were amended during the hearing to reflect the 12.6m front setback, excluding balconies (Exhibit M); and
  • That the following (without prejudice) conditions of consent be added:
    • Landscaping to the site is to comply with the principles of Appendix 5 of 'Planning for Bush Fire Protection 2006' (condition 97).
    • Prior to the issue of an occupation certificate, a restrictive covenant must be placed on title that prohibits any combustible material (as defined by AS 1530, Part 1) being located on any balconies on the south elevation of the building (condition 105).
    • Any strata plan for the approved development must be subject to a by-law which prohibits any combustible material (as defined by AS 1530, Part 1) being located on any balconies on the south elevation of the building (condition 106).

Findings

  1. I accept the agreement of the bushfire experts.

Design quality

Evidence

  1. The planning experts agree that the two neighbouring residential flat buildings (72-74 Gordon Crescent and 76-82 Gordon Crescent) to the east of the proposal, have four residential storeys in their street elevations with additional levels over, setback behind the street façade. 72-74 Gordon Crescent extends to Mowbray Road and steps up the hill. 76-82 Gordon Crescent has four residential storeys in the street façade with two additional storeys setback behind the street façade. The experts agree that the development consent for 7-13 Centennial Avenue, Lane Cove, further to the east on Gordon Crescent, has seven residential storeys in the street façade.

  1. According to Mr Darroch, provision (b) in the Locality 6 - Mowbray precinct of DCP 2010 requiring any fifth storey to have a maximum of 50% of the floor area of the storey below and to be setback 3m from the lower storey's building façade line, only applies to sites with a maximum height of 17.5m - 5 storeys. It is therefore not applicable to the proposal as the site has a maximum height of 14.5m. Mr Sanders does not agree and says that logically, any fifth floor in a 14.5m height limited area, should also comply with the additional setback requirements.

  1. Mr Sanders considers that the proposal is too wide and that the articulation of the street façade has been reduced by the amendments made to the proposal (Exhibit M), such that the articulation of the street façade is insufficient to overcome the excessive width of the proposal. He says that the proposal should be divided into two buildings with a landscaped gap between them and this would provide additional opportunities for solar access to apartments oriented towards the gap. Mr Darroch stresses that the DCP permits the 40m width control to be varied if the articulation of the street elevation is satisfactory and this has been consistently applied by the Council.

  1. According to Mr Sanders, the proposal does not follow the topography of the site and he says this is demonstrated by the north-south sections (Exhibit M, DA-2200 and 2201), which show the substantial excavation on the northern side of the development. He says that this is the very issue that the storey control in DCP 2010 was designed to avoid (quoted at [37]).

  1. Mr Darroch says that the statement in DCP 2010 under Block Plans (quoted at [28]) should be interpreted to mean that Council's overriding priority is that development achieves its maximum FSR specified in LEP 2009. The Council submits that Mr Darroch has taken this statement out of context.

Findings

  1. Provision (b) in the Locality 6 - Mowbray precinct of DCP 2010, requiring any fifth storey to have a maximum of 50% floor area of the storey below and to be setback 3m from the lower storey's building façade line, qualifies the maximum number of residential storeys control at (a), for LEP maximum height 17.5m and 5 residential storeys. It is not clear whether or not it applies to areas in the LEP maximum height 14.5m and 4 storeys, as presumably the assumption is that it is not relevant to these areas as development is to be 4 residential storeys high. The Master Planning Study includes, at section 5.4 Built Form and Residential Design, an explanation of why the recommendation was made to ensure that the fifth storey is recessed. It states the following:

The height limit at the north western end of the Study Area is recommended to be increased to permit a partial 5th storey (17.5m). It is recommended that Part C of DCP 2010 be amended to ensure that the 5th storey is recessed (ie max 50% of the area of the floor below and setback generally 3m from the façade). In this way, potential visual and shadow impacts resulting from the 5th storey can be minimised.

  1. In my view, it is logical that if a fifth residential storey is permitted in the areas subjected to the LEP 14.5m maximum height and 4 storey limit, then any fifth residential storey should also comply with (b). The purpose for requiring the setting back of a fifth level, being the visual and shadow impacts resulting from a fifth residential storey, are just as relevant within the 14.5m height limited area.

  1. Furthermore, the side and rear setback control (DCP 2010 at 3.5.2 quoted at [32]) is 6m for 4 storeys and 9m for 5-8 storeys. The side and rear setback on the fifth residential storey of the proposal should comply with the side and rear setback control.

  1. I agree with Mr Sanders that the street elevation is not satisfactorily articulated in the streetscape and the proposal does not satisfy the building width objectives of DCP 2010, as it presents a large, continuous building bulk and massing to the street with minimal relief both horizontally and vertically. The street elevation of the proposal has no distinguishable rhythm and the manipulation of the building's elements lacks any pattern or hierarchy. The balconies are not integrated successfully into the overall building form and articulation of the street façade design of the eastern half is quite different to the western half, with little relationship between the two.

  1. I agree with Mr Sanders that the proposal has paid little regard to the natural topography of the site. The statement in the Master Planning Study (quoted at [41]), clearly explains the reasoning behind increasing height limit to 14.5m, while retaining the four storey limit and this explanation is particularly pertinent to this proposal. The height limit was increased in order to stop residential buildings being sited low into the ground, with the lower level of units below natural ground level. It is an oversight by the Council that this explanation was excluded from the provisions of Locality 6 - Mowbray Precinct of DCP 2010.

  1. The Eastern Elevation (Exhibit M, DA-2101) shows that a significant proportion of the eastern half of the Ground Floor, containing residential units, is below natural ground level. A number of the units on both the Ground Floor and Level 1 are significantly compromised by the siting of the building low into the ground on the northern side. For example:

  • The Eastern Elevation shows a retaining wall on the northern side (rising to 2m above the finished floor level of Level 1 RL43.6 when scaled from the drawing), positioned 2m from the northern edge of the balcony of Unit 102. (This retaining wall is shown on the Ground Floor Plan DA-2002 as being positioned 1m from the northern edge of Unit 102's balcony over, at RL45.0). It is customary to draw a plan at 900mm above finished floor level. The Level 1 Plan omits to show the retaining wall 2m (or 1m - depending on whether the position shown on the Eastern Elevation or the Ground Floor Plan is correct) to the north of the balcony, yet the height of the wall is 1.4m or 2m above the finished floor level. Either way, the only outlook from the living room of Unit 102 is to the retaining wall.
  • The only outlook from the living room and the balcony of Unit 101 is to the retaining wall (which is shown at RL46.0 on the Ground Floor Plan, 2.4m higher than the finished floor level of Unit 101).
  • Unit G01 on the Ground Floor (below Unit 102) is positioned below natural ground level. Unit 102 overhangs the northern façade of G01 by 6.3m, 5.6m and 2m. The significant depth of the overhang of the building over, coupled with the height of the retaining wall well above the First Floor finished floor level, would substantially compromise the amenity of Unit G01.
  • The northern terrace of Unit 109 must have a retaining wall around it, as the finished floor level is RL43.6 and the natural ground level at the north-western corner of the terrace is RL46.0. Therefore the only outlook from the three bedrooms and the terrace of Unit 109 is to a 2.4m high retaining wall.

  1. For these reasons, I am not satisfied that sufficient consideration has been given to the design quality of the proposal when evaluated in accordance with the design quality principles of SEPP 65 and the RFDC.

  1. In my view, a proposal that appropriately responds to the topography of the site, with an articulated street façade of high architectural quality, coupled with any fifth residential floor being setback from the street elevation, would result in an appropriate form within the context of the neighbouring residential apartment buildings. Two buildings, with a gap between them, would significantly compromise the FSR yield of the development. However, this is a matter for a future application.

Internal amenity of the apartments

Evidence

Orientation of units

  1. The experts agree that there are 14 single aspect units with a southerly aspect, which represents 28% of the total number of units.

Solar access

  1. The experts agree that all of the ground floor units, G01, G02, G03, G04 and G05 and the Level 1 unit, 107, do not receive any direct sunlight in mid-winter. Mr King qualifies his agreement by saying that G01 may receive some sunlight in mid-winter, however it would not satisfy the RFDC minimum of two or three hours.

  1. The experts disagree on how many units receive a minimum of three hours direct sunlight between 9am and 3pm in mid-winter. Mr King says that 42 units comply, which represents 65.6% of units and Mr Layman says 36 units comply, which represents 56.3% of units.

  1. Five units, 403, 404, 407, 408 and 503, rely on a skylight to meet the minimum of three hours direct sunlight internally. Mr Layman says that these units do not comply, as their private open spaces do not also receive three hours of direct sunlight. Mr King has included these units in his calculation.

  1. The RFDC rules of thumb for daylight access require that living rooms and private open spaces for at least 70% of apartments in a development should receive a minimum of three hours direct sunlight between 9am and 3pm in mid winter. Mr Layman has interpreted this to mean that both the living room and the private open space must receive the 3 hours of sunlight for a unit to be complying. Unit 502 receives 3 hours of sunlight internally, however the balcony does not. According to Mr Layman, unit 502 should not be included in the tally of complying units and Mr King has included it.

  1. Mr King says that two units receive a minimum of two hours direct sunlight between 9am and 3pm in mid-winter, units 111 and 213. Mr Layman says that only the interior of these units receive two hours of sunlight in mid-winter and the private open spaces of these units do not receive two hours of sunlight in mid-winter.

  1. The experts agree that if there is a residential flat building development to the north of this site, fronting Mowbray Road, it will reduce the number of units that achieve three hours of solar access mid-winder to 52% of the total number of units.

Cross ventilation

  1. The experts disagree on how many units are cross ventilated. According to Mr King, 42 units are cross ventilated, which represents 65.6% of the total and according to Mr Layman, 34 units are cross ventilated, which represents 53% of the total.

  1. Four units, 101, 201, 301 and 401, face north and their main bedrooms have windows in both the northern and western wall. Mr Layman says that the design of these units does not promote the circulation of air at the rear of the unit and Mr King says that those units fall within the definition of the RFDC and therefore should be included in the tally of cross ventilated units.

  1. Three units, 404, 407 and 408 rely on a ventilated skylight to achieve cross ventilation. Mr Layman has not included four units with a ventilated skylight in his calculation and Mr King has.

Amenity

  1. Mr King says that the RFDC provides guidance to achieving good amenity in apartments, however developments, which seek to vary from the RFDC's minimum standards, can demonstrate how site constraints and orientation prohibit the achievement of these standards and how energy efficiency is addressed. He says that this is a particularly constrained site, as it is adversely orientated to the south on a steep slope, with its main outlook to the south, over Batten Reserve.

  1. Mr Layman agrees that this is a constrained site with respect to solar access and also in respect to achieving the maximum FSR for the site. He says that the Ground Floor units are underground and are provided as a result of the significant excavation proposed at the rear of the site. In his view, a proposal for this site should be more responsive to the natural topography of the site.

Findings

Orientation of units

  1. The site is on a south facing slope, with a pleasant outlook over a bush reserve to the south. Consequently, many of the living areas of any proposal for this site will be orientated to the south.

  1. The proposal has three single aspect units orientated to the south on each level (and four on Level 4) and the single aspect apartments include large two and three bedroom units (107, 110, 207, 211, 307, 311).

  1. The impact of the southern orientation of living areas could be lessened by having a greater proportion of two and three bedroom 'through' units (at least two between each of the three lift cores) with bedrooms on the northern side; and/or by having two storey loft units to maximise daylight within a south facing unit.

  1. However, I accept that the constraints and opportunities of this site dictate that a high proportion of living areas will inevitably be oriented to the south, towards the view, in any proposal for this site.

Solar Access

  1. The proposal is in an area zoned for high density and therefore two hours of sunlight to at least 70% of units between 9am and 3pm mid-winter is acceptable (RFDC page 85), although I note that DCP 2010 is not consistent with the RFDC and at 3.15 requires 3 hours of direct sunlight in mid-winter to at least 70% of units in high density residential areas.

  1. Mr Layman considers that the RFDC requires that both the living room and the private open space receive the 2 hours of sunlight in order to be included and it is the same wording at 3.15 of DCP 2010. I agree that the use of the word 'and' means that both areas must receive the 2 hours of sunlight to strictly comply with the RFDC 'Rules of Thumb' for daylight access.

  1. The dispute between the experts is whether or not six units receive at least 2 hours of sunlight, of which five include a skylight to provide the required sunlight to the living area only. I note the RFDC (page 84) suggests the use of skylights to supplement daylight access to habitable rooms.

  1. For the reasons outlined at [73] above, the constraints and opportunities of this site dictate that a higher proportion of living areas will inevitably be oriented to the south and I acknowledge that this makes it difficult for any proposal for this site to comply with a minimum of 2 hours of sunlight during mid-winter in the living area and private open space of 70% of units. However, a skilfully designed proposal that appropriately responds to the topography of the site, with any fifth residential floor being setback from the street elevation, may improve the proportion of units meeting the minimum requirement for 2 hours of sunlight during mid-winter.

  1. I have given no regard to the prospect of a residential apartment building fronting Mowbray Road West to the north of the site and overshadowing the proposal, resulting in less units achieving either the 2 or 3 hours of sunlight in mid-winter, on the basis that it is impossible to accurately predict which allotments will be amalgamated; the future form of neighbouring residential flat development and what impacts that may have on the proposal.

Cross-ventilation

  1. The four units, 101, 201, 301 and 401, which face north and their main bedrooms have windows in both the northern and western wall may strictly meet the RFDC definition, however I agree with Mr Layman that adding a window to the bedroom does not promote the circulation of air at the rear of the apartment, as the design of these apartments has the kitchen and dining at the back of the apartment and the living and bedroom on the northern façade. The three units, 404, 407 and 408 that rely on a ventilated skylight to achieve cross ventilation, also strictly meet the RFDC definition, however the skylights are generally positioned adjacent to the living room sliding doors, which again does not promote the circulation of air at the rear of the apartment. However, the inclusion of the additional bedroom windows and the ventilated skylights improves ventilation within these units.

  1. The RFDC objectives for natural ventilation (RFDC page 86) include ensuring that apartments are designed to provide all habitable rooms with direct access to fresh air. Taking the proposal at its highest, that is adopting Mr King's tally, the proposal has 65.6% of apartments cross-ventilated which meets the RFDC rules of thumb for natural ventilation.

Amenity

  1. I accept the experts agreement that no ground floor apartment will meet the minimum 2 hours of sunlight during mid-winter.

  1. I agree with Mr Layman that a number of the units on both the Ground Floor and Level 1 are significantly compromised by the siting of the building low into the ground on the northern side, for reasons given at [58].

  1. The layout of each level is complex and varies between levels, which does not appear to achieve any advantage in terms of internal amenity. More repetition between the layout of units and between each level would reflect a rhythm on the façade and potentially address some of the design quality issues of the proposal.

Apartment layout

  1. In my opinion, the layout of some of the apartments gives rise to a number of amenity issues, which result in awkward and unresolved spatial planning, including the following:

  • Units G01, 101 and 102 as described at [58];
  • Unit 110 has a single, southerly aspect. The building above overhangs the living room sliding doors by 4m. The kitchen of 110 is positioned on the back wall and around the corner from the living room doors. Consequently, the kitchen and living areas will have very poor natural lighting.
  • Unit 112 is 11m deep with the dining area offset from the living and kitchen. Consequently, the dining and entry area will have very poor natural lighting. The main bedroom window is at the end of a short hall 1.2m wide, which is compromised.
  • The entry to the majority of apartments is directly into the living or dining room, without any transitional foyer or entry space.
  • The laundry cupboards in a number of units open into the living or dining rooms.
  • There is a direct view from the living rooms of Units 106, 206, 306 and 406 to the toilet in the bathroom when the bathroom door is open.

  1. These design flaws collectively indicate that the spatial arrangement of a number of the units is not well organised and that they do not provide a high standard of residential amenity.

Apartment mix

  1. There was initially a contention raised by the Council regarding the mix of apartments in the proposal on the basis that DCP 2010 at 3.11 states that at least 10% of each unit type should be provided, as the original proposal did not include any three bedroom apartments. The amended proposal (Exhibit M) includes 4 three bedroom apartments which represents 6.25% of the total.

  1. No evidence was provided in relation to this contention following the amendments to the proposal, however Mr Seymour did raise it during his closing submission. I note that the RFDC (page 67) includes that appropriate apartment sizes are to be determined in relation to geographic location and market demands and the RFDC rules of thumb for apartment mix (page 70) includes that the appropriate apartment mix for a location will be determined by population trends and present market demands, while noting that a variety of apartment types should be provided.

  1. No evidence was provided during the hearing on what basis the 10% of each unit type required by DCP 2010 is founded and there are no objectives or explanations in DCP 2010 for apartment mix. The general market based approach of the RFDC should be preferred over the specific provisions in DCP 2010, as market demands can change over time.

Traffic

Evidence

  1. The traffic experts agree on the following:

  • 98 car spaces are required and 102 spaces are provided;
  • 4 motor cycle spaces are required and 4 are provided;
  • 6 bicycle lockers are required and 6 are provided;
  • 6 bicycle racks are required and the Ground Floor Plan was amended during the hearing to show the 6 bicycle racks adjacent to the eastern pedestrian entry to the building (Exhibit M, DA-2002);
  • 44 car parking spaces are provided as tandem spaces and tandem spaces are only to be allocated to 2 and 3 bedroom apartments.

  1. The experts disagree whether the accessible car spaces B2/05, B2/14 and B2/19 meet AS/NZS 2890.6.2009 (Exhibit 19). Mr Sullivan says that the columns adjacent to these spaces will impede access and egress for disabled drivers and passengers. Mr Hazell considers that the columns adjacent to the accessible car spaces do not prevent access to/from a vehicle by a person with a disability and they comply with the intention of AS/NZS 2890.6.2009.

  1. The Applicant submits that if I am minded to accept Mr Sullivan's interpretation and if the proposal is otherwise acceptable, this issue could be resolved by a condition to amend the layout of the car spaces.

  1. The proposal locates the bin storage areas in three locations, adjacent to Lift 1 on Basement Level 1 and adjacent to Lifts 2 and 3 on Basement Level 2. A strata manager will be required to move the bins on the night preceding garbage collection into the bin collection area on Basement Level 2. Mr Sullivan says that there is a conflict between traffic movement in the basement and the movement of the bins.

Findings

  1. Given the above findings, it is not necessary to deal with the remaining issues in dispute between the traffic experts.

Conclusion

  1. The relevant design quality principles of SEPP 65 seek to ensure that development responds and contributes to its setting, provides an appropriate scale in terms of bulk and height that suits the context and that the design of a building's elements, textures, materials and colours achieves a harmonious composition. The proposal does not demonstrate that adequate regard has been given to the design quality principles of SEPP 65 for context, scale, amenity and aesthetics, pursuant to cl 30A(2), for the reasons set out in the judgment.

  1. A number of the units on both the Ground Floor and Level 1 are significantly compromised by the siting of the building below natural ground level and low into the ground on the northern side. While I accept that this is a constrained site, due to its position on a steeply sloping hill orientated to the south and with its best outlook to the south over Batten Reserve, I am convinced by Mr Sanders' evidence that a more skilful design could appropriately respond to the steep topography of the site and come closer to achieving the RFDC goals in terms of amenity.

  1. The proposal does not satisfy the building width objectives of DCP 2010, as it presents a large, continuous building bulk and massing to the street with minimal relief both horizontally and vertically. The street elevation of the proposal has no distinguishable rhythm and the manipulation of the building's elements lacks any pattern or hierarchy.

  1. The fifth residential storey should comply with the Locality provisions of DCP 2010 and have a maximum of 50% floor area of the storey below and be set back 3m from that lower storey's building façade line, as the purpose for requiring the setback is to ameliorate visual and shadow impacts resulting from a fifth residential storey.

  1. Given the above findings, it is not necessary to deal with the disputed conditions of consent.

Orders

  1. The orders of the Court are:

(1)   The appeal is dismissed.

(2)   Development Application No. 13/24 for the demolition of five dwelling houses and the construction of a residential flat building containing 64 dwellings and basement car park is refused.

(3)   The exhibits, other than exhibits 4 and M, are returned.

Susan O'Neill

Commissioner of the Court

Amendments

21 August 2013 - typographical error last line 'improve' changed to 'improves'


Amended paragraphs: 82

Decision last updated: 21 August 2013

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