Wainidiva Pty Ltd v Council of the City of Sydney

[2017] NSWLEC 1156

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wainidiva Pty Ltd v Council of the City of Sydney [2017] NSWLEC 1156
Hearing dates:	9 March 2017
Date of orders:	09 March 2017
Decision date:	09 March 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. Consent is granted to development application number D20151900 for a mixed use five storey development comprising 24 residential apartments, ground floor retail tenancy and basement car parking at 432-444 Elizabeth Street, Surry Hills as amended on 7 December 2016 and subject to: a) Conditions contained in Annexure A, and; b) Plans contained in Annexure B. 3. The exhibits are returned with the exception of exhibit J.
Catchwords:	DEVELOPMENT APPLICATION: mixed use strata development with 24 residential apartments, ground floor retail tenancies, and basement car parking – no contentions remainig between parties – consent orders – residents objections remain
Legislation Cited:	Sydney Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Wainidiva Pty Ltd (Applicant) Council of the City of Sydney .(Respondent)
Representation:	Counsel: Mr A Galasso SC (Applicant) Ms N Hammond, barrister (Respondent)   Solicitors: Mills Oakley (Applicant) Council of the City of Sydney.(Respondent)
File Number(s):	2016/194866
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of DA No. D/20151900 for a mixed use strata development with 24 residential apartments, ground floor retail tenancies, and basement car parking at 432‑444 Elizabeth Street, Surry Hills.

2. The council maintain that the application should be refused because

(1) a breach of the height standard,

(2) unacceptable residential amenity,

(3) unacceptable deep soil area, preservation of trees and landscape design, (4), unsuitable accessibility,

(5) unacceptable allocation of off street car parking spaces,

(6) inadequate information on view impact overshadowing and natural ventilation, and

(7) flooding, and unacceptable impacts on light and ventilation to an adjoining building.

3. Prior to the matter coming before the Court, the applicant provided further information and amended plans that provided for:

(1) the residential lobby at ground level to be elevated to RL32,

(2) privacy screens to all apartment balconies facing Butt Street,

(3) the overall building height reduced by 500 mm,

(4) the communal open space on level 5 to be reconfigured,

(5) a setback to the parapet on level 4 and 5 as well as to the balustrades on level 5, and

(6) the floor to height ceilings on all levels reduced to a typical 3.1 mm to allow for the overall building height reduction of 500 mm.

4. The effect of the amended plans and other information is that the council now seeks to enter into consent orders.

5. In this regard the Court's Practice Note Class 1 Development Appeals (the Practice Note) relevantly provides at par 46:

46. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account.

Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders, including the proposed conditions of consent;

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard or that, in the circumstances of the case, notification is not necessary.

6. In summary, the practice note requires,

(1) evidence to show that approval is lawful and appropriate,

(2) whether any objection has been properly taken into account, and

(3) whether reasonable notice has been given to all person who objected to the proposal.

7. In relation to the first part of the Practice Note, the parties provided a joint expert report from Mr Andrew Darroch, town planner for the applicant, Mr Angelo Candalepas, architect for the applicant, Mr David Reynolds, town planner for the council, and Ms Allison Cronin, urban design specialist for the council.

8. The joint expert report addressed the contentions filed by the council and concluded that there are no points of disagreement between the experts in relation to the identified contentions. On this basis I am satisfied that the requirement in the Practice Note that sufficient evidence has been provided to show that the approval is "lawful and appropriate."

9. The Court heard from residents from two adjoining or nearby residential flat buildings and a representative of the adjoining commercial building in Clisdell Street. The concerns of the owners who were often representing other owners with the buildings were:

(1) unacceptable height,

(2) inadequate separation of buildings,

(3) amenity impact such as loss of solar access, loss of privacy and loss of views,

(4) construction damage,

(5) noise from rooftop mechanical plant,

(6) noise from rooftop recreation area, and

(7) crane trespass during the construction phase.

10. The representative of the adjoining commercial building expressed concern over the need to remove windows on the common boundary with the site because of the zero setback provided by the proposed development.

11. On the matter of height, the relevant experts agree that the building has been reduced in height by 500 mm and the only breach of that height standard is the lift overrun and rooftop lift lobby stair and associated structures. Given that these elements have been designed to provide access to the rooftop area and limiting impacts on views and outlook, the experts agree that the height of the proposal is acceptable.

12. With the benefit of the site view and an understanding of the plans, I concur with the conclusions of the town planning experts and having read the cl 4.6 written request, I also concur that the variation to the height standard is acceptable in the circumstances of this case.

13. The separation of the proposed building from other residential flat buildings is addressed by the experts where they state:

16. It is agreed that the amended proposal will be built to the new Butt Street boundary and does not achieve adequate privacy by separation distance alone. Although the ADG does not specify numerical requirements for building separation at street boundaries, visual privacy impacts can be mitigated through fenestration treatments and privacy screening devices.

17. The amendments to the proposal and proposed conditions of consent seek to avoid direct lines of sight between neighbouring buildings. The proposed screening to the balconies and living spaces at levels 1 and 3 is considered acceptable, however conditions (2)(b) and (10) have been recommended to require additional privacy screens and fenestration treatments to the bedroom windows to the northern elevation.

18. The experts agree that the ADG does not specify numerical building separation distances between neighbouring properties over side and rear boundaries. In this situation, the required separation distance of 6 metres from the shared boundary for the lower four storeys is achieved. In accordance with the ADG, the separation distance is shared equitably between neighbouring sites and is measured from the boundary line.

19. It is agreed that the amended proposal does not achieve adequate privacy by separation distance alone to the south elevation at the fifth storey, a distance of 9 metres measured from the boundary and the amended plans are unclear as to whether the proposed screening is fixed and occupies the full window width. Condition (2)(a) has been recommended to require privacy screens to all south facing windows and for the proposed privacy screens to be fixed and extended to the full width of the window to be capable of achieving acceptable visual privacy.

14. I am satisfied that that the amended plans and additional conditions proposed by the Council satisfactorily address the issue of building separation.

15. Amenity impacts were also addressed by the town planning experts where they state:

21. The experts agree with the conclusion of the Façade Reflected Sound Analysis prepared by the applicant's acoustic experts. The analysis concludes that the proposed scheme should not have any significantly adverse effect on the amenity of existing residents of the adjoining building and therefore additional treatments to the southern façade of the proposed development would not be necessary.

22. The amended and additional shadow diagrams and solar access documentation has been reviewed by the experts and it is agreed that the proposal satisfies the relevant provisions of the ADG, particularly in relation to maintaining a minimum of two hours of direct sunlight to living rooms and private open space of adjoining properties between 9am and 3pm at the mid winter solstice.

23. The experts agree that the modifications to the southern parapet of the proposed buildings have satisfactorily reduced overshadowing to two apartments which were impacted beyond that prescribed by the ADG design criteria. Apartments 28 and 29 at 446-458 Elizabeth Street will have reduced solar access, however they retain a minimum of two hours of solar access on the winter solstice.

24. The extension of the slope roof area along the full length of the southern boundary was modelled to assess the possibility of further overshadowing reductions. This modification introduced non-compliances that unacceptably reduced the amenity within the proposed bedroom of apartment 4.1. Given compliance in relation to solar access has already been achieved, the experts agree that this modification is unnecessary.

25. The ADG does not specify solar access requirements for rooms other than living spaces. The plan layout of apartment 27 at 446‑458 Elizabeth Street locates a bedroom only on the external façade. The living spaces are located on other facades not impacted by the proposal. Notwithstanding the overshadowing, analysis indicates that the bedroom window and balcony retain partial solar access between 9am and 1pm. The experts agree that the proposed building is not considered to unreasonably reduce daylight access.

26. All apartments in the external façade of this building with the exception of the most easterly apartment have a wide frontage on the curve of the façade and full width balcony. Openings in the proposed building which directly face 446 Elizabeth Street are set back by 6 metres from the shared site boundary. The experts agree that this setback distance retains adequate natural light to these apartments. The remainder of apartments at 446 Elizabeth Street benefit from a north to north-westerly aspect and will receive adequate nature light."

16. I concur with the conclusions of the experts on this matter.

17. Of the other matters raised by residents; construction damage to adjoining properties is addressed by condition 65 that require a dilapidation report and photographic evidence of buildings prior to commencement of demolition and excavation works. Noise from mechanical plant on the roof is addressed by condition 38, as is noise in general from the building.

18. Concerns expressed over the potential for cranes to swing over residential properties is a private matter and will generally require the establishment of an easement if it is to occur. The concern raised by the adjoining commercial properties that will necessitate the bricking up of some windows in the elevation on the common property boundary with the subject site was considered acceptable by the experts on the basis that firstly, adequate ventilation and light will still be available from the northern elevation and secondly, no easement exists to provide a setback for ventilation and light.

19. The experts also stated that the proposed development satisfies the requirements in terms of height and FSR and this is a further matter that adds weight to the approach adopted by the experts in this matter. While I understand the concern expressed by the adjoining property, I accept the evidence of the experts in this matter.

20. Overall, the additional reports and information provided, (Exhibits A to Q) have provided sufficient information, together with the content of the joint report, to conclude that there is no reason why the consent orders should not be granted.

21. In terms of the LEP, there are no matters required to be considered by cl 2.3(2), cl 6.1, cl 7.3 or cl 7.15 that would warrant the refusal of the application. Consequently, the orders of the Court by consent are:

1. The appeal is upheld.

2. Consent is granted to development application number D20151900 for a mixed use five storey development comprising 24 residential apartments, ground floor retail tenancy and basement car parking at 432-444 Elizabeth Street, Surry Hills as amended on 7 December 2016 and subject to:

a) Conditions contained in Annexure A, and;

b) Plans contained in Annexure B.

3. The exhibits are returned with the exception of exhibit J.

______________

G Brown

Commissioner of the Court

194866.16 Annexure A (C) (235 KB, pdf)

194866.16 Annexue B Architectural Plans (11.0 MB, pdf)

194866.16 Annexure B Landscape Plans (16.1 MB, pdf)

Decision last updated: 27 March 2017