William Karavelas v Hurstville City Council

[2015] NSWLEC 1095

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	William Karavelas v Hurstville City Council [2015] NSWLEC 1095
Hearing dates:	12 February, 2015
Decision date:	13 April 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld. 2. Development Application No. 2013/0324 for the demolition of the existing dwelling and the construction of a 3 storey residential flat building consisting of 8 units, basement car parking and strata subdivision is approved, subject to the conditions of consent at Annexure ‘A’. 3. The exhibits, other than exhibits 1, 5 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing dwelling and construction of a residential flat building; amendments made to the proposal address Council’s contentions; non-compliance with the height of buildings development standard.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	FM Holdings Pty Limited v Hurstville City Council [2014] NSWLEC 1061 Karavelas v Hurstville City Council [2014] NSWLEC 1195 Achi Constructions Pty Limited v Hurstville City Council [2014] NSWLEC 1213 Achi Constructions Pty Limited v Hurstville City Council [2014] NSWLEC 1216 Beliquantum Property Development Pty Limited v Hurstville City Council [2014] NSWLEC 1229 Design Workshop Australia Pty Limited v Hurstville City Council [2014] NSWLEC 1236 Triple 8 Development Group Pty Limited v Hurstville City Council [2014] NSWLEC 1242 Karavelas v Hurstville City Council [2014] NSWLEC 1246 Pearce Developments v Hurstville City Council [2014] NSWLEC 1269 Triple 8 Development Group Pty Limited v Hurstville City Council [2014] NSWLEC 1267 Triple 8 Development Group Pty Limited v Hurstville City Council [2014] NSWLEC 1263 Urban Link Pty Limited v Hurstville City Council [2014] NSWLEC 1242
Category:	Principal judgment
Parties:	William Karavelas (Applicant) Hurstville City Council (Respondent)
Representation:	Counsel: Mr N. Eastman (Applicant) Ms P. Hudson (Respondent) Solicitors: Gadens Lawyers (Applicant) Marsdens Law Group (Respondent)
File Number(s):	10892 of 2014

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act1979 (EPA Act) against the refusal of Development Application No. 2013/0324 for the demolition of existing structures and construction of a three storey residential flat building comprising 8 units and basement car parking (the proposal) at 75 Trafalgar Street, Peakhurst (the site) by Hurstville City Council (the Council). The appeal was not subjected to a conciliation conference.

2. The Council did not oppose the granting of leave for the applicant to rely on amended plans and leave was granted by the Court on the basis agreed by the parties, pursuant to s 97B(2) of the EPA Act.

Issues

3. The Council’s contentions in the matter, prior to the joint conferencing of the experts and the provision of amended plans, were:

• The eastern side setback and the eastern building separation is inadequate and inconsistent with the relevant controls;

• The private and communal open space for the proposal is inadequate and does not comply with the relevant controls;

• The proposal exceeds the allowable building envelope and this will result in increased overshadowing of the adjoining property to the north-east;

• Less than 70% of the living areas and private open space of the proposal receive a minimum 3 hours of solar access between 9am and 3pm at the winter solstice;

• The proposal is inconsistent with the future character of the area;

• The proposal is likely to have an adverse impact on adjoining properties;

• The proposal does not provide an adequate level of privacy to the future occupants;

• The location of the driveway ramp will cause an adverse acoustic impact on the bedrooms of Unit 2; and

• Approval of the proposal will set an undesirable precedent for similar inappropriate development in the area.

4. While the Council accepts the agreement of the experts that the amendments made to the proposal address all of the Council’s contentions; Ms Hudson submits that the Council does not consent to the granting of approval and the Council presses the contentions regarding the inadequacy of the front and side setbacks and the size of the roof-top communal area.

5. Furthermore, Council’s presses a new contention regarding the non-compliance of the amended proposal with the height of buildings development standard. It is Council’s view that the lift over-run, which causes the lift shaft to project 13.35m above ground level in the amended proposal, cannot be characterised as an architectural roof feature and should be dealt with as an exception to a development standard, pursuant to clause 4.6 of Hurstville Local Environment Plan 2012 (LEP 2012). It is Council’s position that the proposal should comply with the maximum height development standard and that the requested exception to the standard should not be permitted.

6. Ms Hudson further submits that the joint report of the experts was filed the day before the hearing and the amended proposal was received by Council on the morning of the hearing, leaving insufficient time for Council’s staff to properly consider the amendments.

The site and its context

7. The site is on the corner of Trafalgar and Lawrence Streets, Peakhurst. The site area is 788.8sqm. The site is generally rectangular in shape and falls from the rear, eastern corner to the western corner of Trafalgar and Lawrence Streets.

8. 14 Lawrence Street, to the south-east of the site, contains a two storey single family dwelling and 73B Trafalgar Street, to the north-east of the site, contains a two storey, detached dwelling.

The proposal

9. The proposal is a three storey residential flat building, containing 8 units with basement parking and a roof top terrace common area.

10. The Ground Floor consists of Unit 1 (1 bed + study), Unit 2 (2 bed) and Unit 3 (2 bed). The First Floor consists of Unit 4 (2 bed), Unit 5 (2 bed) and Unit 6 (2 bed). The Second Floor consists of Unit 7 (3 bed) and Unit 8 (2 bed adaptable unit). The basement parking provides 1 car space per unit and Unit 7 has an additional tandem car space. The Unit 8 car space is an accessible space. There are 2 visitor car spaces. The roof top terrace is 57.28sqm, with lift and stair access from the foyer and a kitchenette.

11. The parties agreed that the top of the lift shaft, which accommodates the lift over-run and allows for lift access to the roof lobby and outdoor communal area, is 13.35m above ground level.

Planning framework

12. 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).

13. 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). 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.

14. The RFDC objectives for open space are as follows:

To provide residents with passive and active recreational opportunities.

To provide an area on site that enables soft landscaping and deep soil planting.

To ensure that communal open space is consolidated, configured and designed to be useable and attractive.

To provide a pleasant outlook.

15. The RFDC rule of thumb for open space suggests that communal open space should be at least between 25 and 30% of the site area and where developments are unable to achieve the recommended communal open space area, such as those in dense urban areas, they must demonstrate that residential amenity is provided in the form of increased private open space and/or in a contribution to public open space.

16. The site is zoned R3 Medium Density Residential pursuant to LEP 2012 and the proposal is permissible with consent. The objectives for the R3 zone are:

•To provide for the housing needs of the community within a medium density residential environment.

•To provide a variety of housing types within a medium density residential environment.

•To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•To ensure that a high level of residential amenity is achieved and maintained.

•To provide for a range of home business activities, where such activities are not likely to adversely affect the surrounding residential amenity.

17. The maximum height of buildings development standard for the site is 12 (Height of Buildings Map HOB_002 LEP 2012). The objectives for the height of buildings, at cl 4.3, are:

(a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality,

(b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development and to public areas and public domain, including parks, streets and lanes,

(c) to minimise the adverse impact of development on heritage items,

(d) to nominate heights that will provide a transition in built form and land use intensity.

18. Clause 4.6 of LEP 2012 provides flexibility in applying certain development standards to particular development to achieve better outcomes. The relevant provisions of cl 4.6 are:

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Director-General has been obtained.

19. Clause 5.6 of LEP 2012 permits development that includes architectural roof features that exceed, or cause a building to exceed, the maximum height development standard, to be granted consent. The provisions of cl 5.6 are:

(1) The objectives of this clause are as follows:

(a) to create variety in the Hurstville skyline and urban environment,

(b) to encourage quality roof designs that contribute to the aesthetic and environmental design and performance of the building,

(c) to encourage integration of the design of the roof into the overall facade, building composition and desired contextual response,

(d) to promote architectural design excellence.

(2) Development that includes an architectural roof feature that exceeds, or causes a building to exceed, the height limits set by clause 4.3 may be carried out, but only with development consent.

(3) Development consent must not be granted to any such development unless the consent authority is satisfied that:

(a) the architectural roof feature:

(i) comprises a decorative element on the uppermost portion of a building, and

(ii) is not an advertising structure, and

(iii) does not include floor space area and is not reasonably capable of modification to include floor space area, and

(iv) will cause minimal overshadowing, and

(b) any building identification signage or equipment for servicing the building (such as plant, lift motor rooms, fire stairs and the like) contained in or supported by the roof feature is fully integrated into the design of the roof feature.

20. The provisions of Section 4.3 ‘Multiple Dwellings and Residential Flat Buildings’ of Development Control Plan No 1 – Hurstville LGA (DCP 1) are a relevant consideration.

21. DCP 1 includes the following controls for residential flat buildings:

Landscaped area	20%
Maximum storeys	3
Minimum private open space	12sqm
Front boundary setback	6m
Corner allotment secondary street setback	4m
Rear boundary setback	6m
Balconies can project into front and rear setback	1m
Side setback	Building envelope controls
Minimum street frontage	24m

22. The building envelope (for the side setback of the north-eastern boundary of the site) is a plane projected at 45 degrees from a height of 1.5m above natural ground level at the boundary (section 4.3.2.4 of DCP 1).

Public submissions

23. Two resident objectors provided evidence on site at the commencement of the hearing. Their objections to the proposal can be summarised as:

• The size of the proposal will result in loss of privacy to adjoining dwellings;

• The insufficient setbacks of the proposal result in loss of privacy to adjoining dwellings;

• The extent of excavation required to construct the basement level may result in structural damage to adjoining dwellings;

• The increase in traffic will be detrimental to the area; and

• The proposal is situated in an area currently characterised by low density residential development and a residential flat building will disrupt the harmony of the neighbourhood.

Expert evidence

24. A joint report (exhibit 5) was prepared by Mr Andrew Darroch (planning) for the applicant and Mr Anthony Betros (planning) and Ms Gabrielle Morrish (urban design and architecture) for the Council.

25. The experts agreed that by revising the layout of the units within the existing envelope of the proposal, based on a sketch prepared by Ms Morrish (exhibit 5, appendix 2), and raising the proposal 1m, the majority of Council’s contentions could be overcome. The replanning of the layout of the units results in a typical level with two units facing north towards Trafalgar Street and the third unit facing west to Lawrence Street, with only bedrooms and bathrooms to be orientated towards the common boundaries. The experts agreed on the following, in regard to the amended proposal:

• The FSR is 0.9:1 which complies with the FSR development standard for the site of 1:1;

• The landscaped area is 27% which exceeds the DCP 1 control requiring 20% of the site to be landscaped;

• Solar access is maintained to the southern neighbour at 14 Lawrence Street;

• The street setbacks are appropriate, including the 3.8 to 4.48m setback to Lawrence Street;

• Raising the development to more closely follow the natural ground level results in less excavation and eliminates the retaining walls along the southern and eastern boundaries;

• The reconfiguration of the ground level entry sequence results in an acceptable and contextually appropriate development;

• The open space and landscaping, together with the roof-top communal open space, satisfies the concerns raised in the contentions;

• The height of the proposal, including the lift shaft over-run, is acceptable;

• The replanning of the layouts results in more than 70% of units achieving 3 hours or more of solar access at the winter solstice;

• Additional windows have been incorporated into kitchens to improve cross-ventilation.

26. The experts agreed to the retention of a Jacaranda tree on the southern boundary.

Submissions

27. Mr Eastman submits that the portion of the lift shaft that exceeds the maximum height development standard for the site has a dual purpose; to accommodate the lift over-run and as a decorative architectural feature, which meets the requirements of cl 5.6 of LEP 2012 and constitutes a similar circumstance to that dealt with and accepted by the Commissioner in FM Holdings Pty Limited v Hurstville City Council [2014] NSWLEC 1061.

Findings

28. I accept the agreement of the experts that the amendments made to the proposal address the Council’s contentions. In accepting their agreement, I have considered the desired future character of the locality, as the site is within an area undergoing a transition as a consequence of its rezoning to R3 Medium Density Residential pursuant to LEP 2012 and I have considered the Court’s recent determinations relating to the R3 Medium Density zone in which the site is located (as identified by Mr Eastman in his written submissions and for completeness, listed in the judgment in cases cited).

29. I am satisfied that the communal open space area on the roof-top is configured and designed to be useable and attractive and that the proposal achieves the RFDC objectives for open space.

30. The lift over-run causes the lift shaft to exceed the height of buildings development standard by 1.35m, as a consequence of the raising of the proposal, which the experts agreed is a preferable arrangement. It is the Council’s position that the proposal’s non-compliance with the height of buildings development standard increases the winter solstice shadow to the south and that the treatment of the top of the lift shaft, with two horizontal projecting bands reminiscent of an Art Deco motif, does not constitute an architectural roof feature under cl 5.6 of LEP 2012. It is the applicant’s position that the treatment of the lift shaft has a dual purpose, which includes being a decorative element on the uppermost portion of the building and therefore the proposal should be granted consent, pursuant to cl 5.6 of LEP 2012, as it is the roof feature that causes the building to exceed the maximum height development standard.

31. It is my view that the proposed banding motif to the top of the lift shaft does not fall within the spirit of cl 5.6 of LEP 2012. I accept the applicant’s submission that an architectural roof feature may have a dual purpose, as this is clearly envisaged by sub-cl 5.6(3)(b). However, I am not satisfied that the proposed banding motif achieves objectives (c) and (d) of sub-cl 5.6(1), ‘to encourage integration of the design of the roof into the overall façade, building composition and desired contextual response’ and ‘to promote architectural design excellence’, because the banding motif is somewhat incongruous with the rest of the façade treatment and does not, in my opinion, relate to any other external decorative or architectural feature shown on the elevations, nor does it manage to integrate the lift shaft into some overall roof feature. For this reason, I accept the Council’s submission that the non-compliance of the proposal with the height of buildings development standard should be dealt with under cl 4.6 of LEP 2012. The applicant has provided a written request for an exception to the height of buildings development standard (exhibit 5, appendix 2).

32. In order for development consent to be granted for a development that contravenes a development standard in LEP 2012, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2012) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012).

28. The relevant objectives for the height of buildings, at cl 4.3(1) of LEP 2012, are to ensure buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality, to minimise amenity impacts on adjoining development and the public domain and to provide a transition in built form and land use intensity.

29. I accept the agreement of the experts that the height of the lift shaft is acceptable and appropriate to the location and consistent with the broader locality (exhibit 5, p 3). The projection of the lift shaft does not create any additional shadowing to the south at the winter solstice, because the altitude of the sun during the afternoon on the winter solstice will result in the shadow being cast by the southern parapet of Unit 8, the southern parapet of the roof top foyer and the highest point of the skillion roof over Unit 8. As there are no amenity impacts caused as a result of the height of the lift shaft and as the views of the roof top from the public domain are acceptable, I am satisfied that the height of the proposal is appropriate to the conditions of the site and its context and the proposal is consistent with the desired future character of the locality. I accept the agreement of the experts that the overall raising of the proposal produces a superior planning outcome, by providing better amenity to the Ground Floor units and requiring less excavation. Compliance with the height of buildings development standard is therefore unnecessary in the circumstances.

30. The written request seeking to justify the contravention of the building height development standard adequately addresses the matters required to be demonstrated in cl 4.6(3)(a) and (b) and the proposal is in the public interest because it is consistent with the objectives of the height of buildings development standard and the objectives for development within the R3 Medium Density zone, in which the development is proposed to be carried out.

31. In regard to the resident objectors’ concern regarding the extent of excavation and the potential for structural damage to their dwellings, I note that the proposed conditions of consent include a requirement for a dilapidation report to be prepared by a qualified structural engineer detailing the current structural condition of adjoining premises (exhibit 4, condition 16).

Conclusion

37. I am satisfied that the amended proposal can be granted consent. I accept the agreement of the experts that the amendments made to the proposal address the Council’s contentions.

38. The proposed banding motif to the top of the lift shaft does not fall within the spirit of cl 5.6 of LEP 2012, however, I am satisfied, for the reasons provided in the judgment, that compliance with the height of buildings development standard in LEP 2012 is unnecessary in the circumstances.

Directions

39. Directions were handed down on 20 February 2015 requiring the applicant to amend the documentation as follows:

• The Jacaranda tree is to be shown as an existing tree to be retained on the Landscape Plan;

• Correct the internal dimension in Bed 1 of Unit 4;

• The horizontal banding motif proposed to the top of the lift shaft can be either deleted or retained;

• The plans are to be consistent with Schedule A of the Court’s practice note, ‘Class 1 Development Appeals’;

• A Basix Certificate is to be provided, based on the amended proposal; and

• Shadow diagrams are to be provided, based on the amended proposal.

40. The amended plans, consistent with the directions above, were filed on 12 March 2015.

41. The amended conditions of consent were filed on 31 March 2015.

Orders

42. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2013/0324 for the demolition of the existing dwelling and the construction of a 3 storey residential flat building consisting of 8 units, basement car parking and strata subdivision is approved, subject to the conditions of consent at Annexure ‘A’.

3. The exhibits, other than exhibits 1, 5 and A, are returned.

­­­­­­____________

Susan O’Neill

Commissioner of the Court

10892 of 2014 O'Neill (O) (173 KB, pdf)

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Amendments

24 April 2015 - Corrected order template

15 April 2015 - Minor typographical error

Decision last updated: 24 April 2015