Land and Environment Court of New South Wales CITATION : Rodcole Pty Ltd v Woollahra Municipal Council [2000] NSWLEC 85 APPLICANT: PARTIES : Rodcole Pty Ltd RESPONDENT: Woollahra Municipal Council FILE NUMBER(S) : 10847 of 1999 CORAM: Lloyd J KEY ISSUES: Development :- development application - non-compliance with floor space ratio and height standards in local environmental plan - SEPP 1 objections against such standards - non-compliance with development control plan. Environmental Planning & Assessment Act, s 97 LEGISLATION CITED: State Environmental Planning Policy No 1 Woollahra Local Environmental Plan 1995, cl 11, 12 CASES CITED: DATES OF HEARING: 18/02/00 EX TEMPORE 02/18/2000 JUDGMENT DATE : APPLICANT: J B Maston (barrister) SOLICITORS: McGlynn & Associates LEGAL REPRESENTATIVES: RESPONDENT: P D McClellan QC SOLICITORS: Deacons Graham & James JUDGMENT: IN THE LAND AND Matter No: 10847 of 1999 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 18 February 2000 Rodcole Pty Ltd Applicant v Woollahra Council Respondent JUDGMENT HIS HONOUR: 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by the respondent ("the Council") to consent to a development application for a residential flat building, at 25 and 27 Newcastle Street, Rose Bay. 2. The proposed development has frontages to both Newcastle Street and Richmond Road and would involve the demolition of two existing houses. The proposed development is a three storey building with car parking in a basement level which is generally below ground. The proposal is to have six residential flats, two on each floor. The residential flats are large, having an average floor area of about 193 square metres, including generous balconies. The development site is within a Residential B zone under Woollahra Local Environmental Plan 1995. The description of the zone in the zoning table is as follows: The Residential B zone applies to areas characterised mainly by existing medium density residential flat buildings and areas where potential has been identified for increased medium density residential development. Floor space and height controls contained in Part 3 of this plan provide guidelines for the scale of new development. Dwelling houses and non-residential development also occur in this zone in varying quantities. 3. The objectives of the zone described in the zoning table, include: (a) To provide for areas of medium and high density residential development in appropriate locations. 4. The development of land for the purpose of residential flat buildings is, under the zoning, expressly permissible with development consent. 5. Clause 11 of the Local Environmental Plan is headed Floor Space Ratios. It provides that a building, other than a dwelling house shall not exceed the floor space ratio indicated for the land on the density map. The density map is the map marked "Woollahra Local Environmental Plan 1995-Density Map" as amended by certain identified maps. The density map has been tendered in evidence. It shows areas to which four different floor space ratios apply, being variously 0.625 to 1, 0.75 to 1, 0.875 to 1, and 1 to 1. The development site is in an area in which a floor space ratio of 0.75 to 1 applies. Floor space ratio is defined in the Local Environmental Plan as, The ratio of the gross floor area of the building to the site area of the land on which the building is, or is proposed to be erected. 6. The Local Environmental Plan defines " gross floor area " as including, inter alia, that part of the area of balconies and verandahs which is in excess of 20 square metres per dwelling. That is to say, the first 20 square metres of balconies and verandahs are not counted as part of the gross floor area. The definition excludes car parking which is provided to meet any requirements of the council. In the present case, as I have noted, the balconies in the proposed development are of a generous size. They exceed 20 square metres per dwelling. The total area of balcony space in excess of an average of 20 square metres per dwelling is 43.9 square metres, which is thus included as part of the calculation of the gross floor area. The proposed development contains three extra car parking spaces over the number of spaces needed to meet the council's requirements. Accordingly the definition of gross floor area requires that the area of the three extra car parking spaces, 90 square metres, be included as part of the gross floor area. There is also a lift in the basement which occupies 11 square metres and is also included, pursuant to the definition, as part of the gross floor area. 7. The proposed building does not comply with clause 11 of the Local Environmental Plan. It exceeds the prescribed floor space ratio of 0.75 to 1. It has a floor space ratio calculated in accordance with the definition of 1.03 to 1. That is some 37 per cent greater than the limit of 0.75 to 1. It is greater than the floor space ratios shown on the density map which are the next two areas of greater density being 0.875 to 1 and, 1 to 1. The exceedence of the floor space ratio is not made up entirely by the balconies and basement areas to which I have referred. About 177.6 square metres of the exceedence is contained within the residential units themselves. 8. According to the evidence of Mr M George, a consultant town planner who gave evidence for the applicant, the average area of the dwelling units is about 193 square metres. In order to comply with the required floor space ratio they would have to be reduced in area to about 160 square metres. Alternatively the dwelling units could remain at about the same size as proposed in the development but would have to be reduced by at least one in number to comply with this control. 9. Clause 12 of the Local Environmental Plan governs the height of buildings. It does so by reference to a height map. The maximum height which applies to the development site, according to the height map, is 9.5 metres. The proposed development does not comply with clause 12. It exceeds the maximum height of 9.5 metres by between 500 millimetres and 1 metre at its western elevation, and by about 1.9 metres at the lift tower. The extent to which the proposed development exceeds the maximum height limit of 9.5 metres reduces as one proceeds towards the eastern elevation, because the natural ground level slopes upwards.. 10. The council has adopted a residential development control plan. Pt 5 of the development control plan is headed "General Design Criteria". Section B of Pt 5 is headed "Building Envelope", and sets out a number of objectives including: 02. To ensure public and private residential environments have adequate access to sunlight. 03. To ensure buildings are of a height and scale which preserves privacy for neighbouring residents and allows the sharing of views. 05. To ensure the scale of development is not excessive and is consistent with the desired future character of the locality. 07. To preserve established tree and vegetation networks and promote new networks by ensuring sufficient rear and side setbacks. 11. The same section of the development control plan also sets out certain performance criteria including: P1. Building footprints are limited to 40 per cent of the site area. P2. Where existing development for a locality displays a predominant pattern of established well vegetated rear yards, buildings shall have a minimum rear setback of 25 per cent of the average site length. 12. The proposed development complies with the building footprint limit under the development control plan of 40 per cent of the site area. It has a footprint of about 32 per cent of the site area. It does not, however, comply with objectives 02, 05 and 07, neither does it comply with performance criteria P2. Shadow diagrams show that there will be a noticeable adverse impact on the rear yard of the adjoining property to the south of the development site, number 29 Newcastle Street. That property will also have along the bulk of its northern boundary a three storey structure which will visually dominate its rear yard. Number 29 also has a number of trees in its rear yard which provide a visual connection with street trees in Richmond Road. Moreover, the existing development in the area displays a predominant pattern of established well vegetated rear yards. According to performance criteria P2, this requires that the proposed development be set back a minimum of 25 per cent of the average site length of numbers 25 and 27 Newcastle Street. This would require the building to be set back a further five metres approximately from the western boundary of the site. Coincidentally such a setback would be very close to the additional six metre setback required, which would make the building then conform to the maximum floor space ratio. 13. The applicant has lodged objections under State Environmental Planning Policy No 1 against the development standards of the floor space ratio of 0.75 to 1, under clause 11 of the Local Environmental Plan and against the development standard of a height of 9.5 metres under clause 12 of the Local Environmental Plan. The applicant also contends that since the site is on a corner fronting both Newcastle Street and Richmond Road it is unreasonable to require it to comply with the required setback from the rear boundary under the development control plan. 14. As to the objection to the floor space ratio, there is some force in the applicant's submission that the impact of the basement facilities, namely the three additional car parking spaces and the lift, does not present any noticeable external impact on the gross floor area. The same could not be said, however, about the dwelling units, which I have noted would have to be reduced in area by a total of 177.6 square metres in order to conform with the standard. This equates to a reduction of about 30 square metres per unit on average. 15. Mr George stated in evidence that the balconies do not read as building bulk. Mr H M Sanders, the consultant town planner who gave evidence for the council, was of the opinion that these balconies do contribute to the overall bulk of the building. In this respect, I am inclined to prefer the views of Mr Sanders and an examination of the elevations as shown on the plans appears to lend support to his view. 16. In summary I am not persuaded that the objection to clause 11 of the Local Environmental Plan is well founded. If the building were to conform with the floor space ratio standard then it would clearly lessen the impact on number 29 Newcastle Street. I am also of the opinion that the planning controls for the Residential B zone should be observed. The council has, it seems, carefully formulated and adopted varying floor space ratios for different areas. It must be remembered that this is not a minor departure from the adopted floor space ratio standard. The proposed development has a floor space ratio which exceeds the ratio which applies in the highest density area of 1 to 1. 17. As to the objection to clause 12, the height control, the applicant has proffered a condition of consent to limit the height of the building on the southern facade, that is the facade which is closest to number 29 Newcastle Street, to a maximum height of 9.5 metres above existing ground level at any point along that facade. If that can be done as the condition suggests, then it does not seem to me that the height control is neither unreasonable or unnecessary. It is self evident of course that any reduction in height would lessen the impact of loss of sunlight at number 29 Newcastle Street. I am thus not satisfied that this objection is well founded. 18. As to the development control plan, I have noted that the proposed development would not comply with objectives 05 and 06, neither would it comply with performance criteria P2. The applicant relies upon the fact that the development site is on a corner with two street frontages. The established pattern of development however, remains one of a series of well established rear yards to houses having frontages to Newcastle Street. The proposed development would not only interrupt that established pattern, but would interrupt the established tree and vegetation network, particularly the visual connection between 29 Newcastle Street and the street trees in Richmond Road. 19. It is not an unimportant fact that an adoption of the development control plan was preceded by the usual public notification thereof and the consideration of public submissions thereon. The development control plan represents both the Council's and the residents' carefully formulated planning objectives for this area. This procedure should not be set at nought. In my opinion the development control plan should be complied with. This means that any building on this site must, in order to comply with the development control plan, be set back some 11 metres approximately from the western boundary. As I have previously noted such a setback, if it occurs, is coincidentally relatively close to a 12 metre setback which would have the effect of reducing the floor space ratio of the building to 0.75 to 1. It may be that by reducing the building's maximum height to 9.5 metres and by setting the building back from the western boundary in this matter it will then conform to the required standards. That is not necessarily the only way in which a building on this site might be made to conform with the standards. It is apparent however that whatever occurs on this site will involve some re-design, re-advertising and re-consideration by the council. 20. I note that a large number of issues was originally identified, but the parties have sensibly concentrated on the three major issues I have described, namely floor space ratio, height and rear setback. The court appreciates this approach and commends the parties for having adopted it. 21. The order of the court is: 1. Appeal dismissed. 2. 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