Land and Environment Court of New South Wales CITATION : Lachlan Project Management v Sydney City Council [2006] NSWLEC 28 APPLICANT Lachlan Project Management PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 11105 of 2005 CORAM: Hussey C KEY ISSUES: Development Application :- Developoment Application - conversion of serviced apartments to residential flats - overlooking - amenity - aesthetics State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2004 South Sydney Local Environmental Plan 1998 LEGISLATION CITED: South Sydney Development Control Plan (Urban Design) 1997 South Sydney (Heritage Conservation) Development Control Plan 1998 South Sydney Development Control Plan No. 11 Transport Guidelines for Development 1996 City of Sydney Access Development Control Plan 2004 Jaguar Investments Pty Ltd v City of Sydney NSWLEC 337; CASES CITED: Pafburn v North Sydney Council [2005] NSWLEC 444; Super Studio v Waverley Council [2004] NSWLEC 91 DATES OF HEARING: 16/01/2006 and 18/01/2006 DATE OF JUDGMENT: 02/09/2006 APPLICANT Mr C Leggat, SC Instructed by: Mr A Buchanan LEGAL REPRESENTATIVES: RESPONDENT Mr S Kondilios, solicitor With: Ms S Halls, solicitor SOLICITORS Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 9 February 2006 11105 of 2005 Lachlan Project Management v Sydney City Council JUDGMENT Background 1 This appeal was lodged against conditions of consent imposed on a development application for the redevelopment of an existing serviced apartment building (The Grantham), at 1 Grantham Street, Potts Point. The proposal involves a change of use for this existing building from 40 serviced apartments to a residential flat building, and the refurbishment of the building with both internal and external alterations to form 8 residential units, i.e. 1 unit per floor. They comprise 7 x 3 bedroom units and 1 x 2 bedroom (penthouse) unit. 2 The proposal requires the removal of the entire facade of the building but the retention of existing the floor plates. It includes removal of existing precast pebble-crete panels, aluminium framed windows, external wall mounted air-conditioning units and existing north facing balconies. 3 The building is proposed to be widened by the inclusion of new balconies on the northern and southern elevations. The existing balconies on the western elevation (overlooking the city and Woolloomooloo) are proposed to be widened within their southern corner from 1.5 m to 3.0 m. 4 It is proposed to widen the basement and ground level footprint of the building, within the south-eastern corner to provide a total of 18 carparking spaces, i.e. an additional 4 carparking spaces over the 14 existing car spaces for the serviced apartments. 5 The neighbouring building to the north 'Stanford Hall', is an older style residential flat building, which has various bedrooms, living rooms and kitchens adjacent to the proposal's northern elevation. 6 After consideration of the proposal, council granted deferred commencement consent, which required design amendments to the building. Consequently, this appeal is against the following deferred commencement conditions: 1. The northern balconies on levels 3 - 9 of the building are to be deleted from the plans and consequential amendments are to be made to the design of the northern elevation. The redesign of the northern elevation is to promote adequate levels of privacy between the subject building and 'Stanford Hall'. The revised elevation is not to result in a blank wall and is to be well articulated and may include privacy screens. 2. A minimum of 4 parking spaces are to be removed from the upper level carpark and one space will be provided for use by persons with a disability. These amendments will result in a maximum of 14 car spaces (including one space for disabled persons) being provided. 3. The northern boundary wall of the enclosed carpark is to be redesigned or setback on the boundary to ensure adequate outlooks and views from ground level units within the adjoining lightwell of ' Stanford Hall', subject to the allowances of the Dividing Fences Act. 4. The communal open space located on the rooftop of the carpark and adjoining the northern boundary is to be deleted. This is to be replaced with lower-level landscaping that provides visual separation and privacy between 'The Grantham' and 'Stanford Hall'. 7 However, after further conferencing between the parties, agreement was reached on the aforementioned Conditions 3 and 4, by way of revised plans, which lowered the communal open space area and provided acceptable lower-height planting, which minimised view loss from units in the adjoining building. 8 Accordingly, the remaining issues at the appeal concern: i) the removal of the proposed balconies on the northern side of the proposal, so as to minimise view loss from the units in 'Stanford Hall' and also disamenity in terms of overlooking, privacy and noise intrusion. ii) the removal of the proposed 4 additional carparking spaces, in order to comply with council's control, which restricts parking spaces in this area. Planning controls 9 In this matter the following controls apply: 1. State Environmental Planning Policy No. 65 -Design Quality of Residential Flat Development, 2. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2004, 3. South Sydney Local Environmental Plan 1998, 4. South Sydney Development Control Plan (Urban Design) 1997, 5. South Sydney (Heritage Conservation) Development Control Plan 1998, 6. South Sydney Development Control Plan No. 11 Transport Guidelines for Development 1996, 7. City of Sydney Access Development Control Plan 2004, 8. Building Code of Australia. The evidence 10 Detailed evidence on behalf of council was presented by Ms S. McMahon, senior council planner. She included extracts from relevant planning controls in her statement, which shows the site is within the 2(b) (Medium Density) Residential zoning, where an FSR of 1.5:1 applies, together with height limit of 12m. From her assessment, she raises no planning issues regarding the concept of converting serviced apartments to the reduced number of 8 residential units, apart from the identified issues. 11 Also, a number of objections were made by the residents of the neighbouring properties about loss of views, privacy, overlooking and inadequate road space/parking. 12 For the applicant, evidence was presented by Mr A. Darroch, consulting town planner and Mr G. Pindar, traffic consultant. 13 The first issue relating to the provision of the additional 4 carparking spaces arises because this exceeds the provisions contained in DCP No. 11. The relevant objectives of these transport guidelines are: - to encourage a reduction in the level of vehicular travel in South Sydney by reducing parking requirements and improving facilities for pedestrians, cyclists and public transport users; - to ensure that an acceptable level of parking is provided on-site to minimise the unreasonable overflow of parking on surrounding streets. 14 Accordingly, the DCP allows the following rates for carparking: · 0.8 spaces per 2 bedroom unit, · 1.2 spaces per 3 bedroom unit, · space per 6 units for visitor parking. 15 Application of these rates results in a total requirement of 10 car spaces for this particular development. However, Mr Kondilios submits that council is prepared to allow the retention of the 14 car spaces provided for the existing serviced apartments, but requires the proposed additional 4 spaces to be converted to storage areas, in order to comply with the general carparking objectives; to reduce reliance on private vehicles. 16 Ms McMahon considers that because the additional 4 spaces allows 2 car spaces per unit, this is excessive as it promotes car usage by occupants, which is contrary to the objectives of the relevant controls. 17 Against this, Mr Darroch says that the DCP allows some flexibility in its application and refers to the following contents: · it is noted in the DCP that it is intended to be updated at regular intervals to be reflective of changing practices and new information as it becomes unavailable… · section 3.2 states that parking rates do not represent a code that should be blindly adhered to, rather they are generalised rates that meet most circumstances. Applications are assessed under a system of merit and there is scope for parking provision to be flexible to suit the particular circumstances and local conditions. · section 3.2.1 refers to concessions to reduce carparking whereby consideration may be given to the projected requirements of people occupying the development taking into account the social, economic status, age, ownership levels, life cycle, etc. … 18 From this, Mr Darroch says it is appropriate to exercise the discretion in the circumstances because of the location of the proposed units and their large floor areas i.e. in excess of 250 sq m, which will attract upper socio-economic market residents, who will most likely require 2 car spaces, either on-site or on the street. 19 In addition this, Mr Darroch says that some review of parking space requirements has been undertaken with the recent gazettal of LEP 2005, because it now contains a development standard requiring the provision of 2 car spaces for every 3 bedroom unit, in the City of Sydney area. Even though the subject site is not within this area, being some 50 m west of the boundary line in Wylde Street, nevertheless this is a reliable indication of the current practice for carparking provision in this general area. Therefore he is satisfied that the application of this recently adopted development standard is relative and appropriate in this case, so that each large, 3 bedroom unit should be allowed 2 carparking spaces. 20 This position is consistent with that of Mr Pindar, who has assessed the proposal on the basis of the prevailing controls and its locational context. He too relies on the statements in DCP 11 that some flexibility is allowed and that these provisions are subject to periodical review. Accordingly he supports the additional 4 car spaces, allowing each of these large units 2 car spaces for the following reasons: · the development is targeted at the high end of the market, with large units and very high prices which attract residents with a high car ownership rate and consequent need for additional parking. This style of development had not evolved when the DCP was prepared in 1993 and would not therefore have been contemplated by the DCP; · in this regard, the DCP embodies 'generic' parking rates that apply to any development within the entire South Sydney LGA, which has a great diversity of housing types within areas and also have different characteristics. This reinforces the need for a flexible approach to the application of the 'nominal' DCP rates under the DCP and this flexibility is in fact invited by the DCP; · the provision of an additional 3 resident parking spaces (above the approved level) would not undermine council policy which is aimed at reducing car usage or set a precedent because the vast majority of development sites would not be conducive to ' high-end' developments of this type; · the additional parking sought will not result in additional car trips at times that are of concern to planners, being the on-street morning and afternoon peak periods, where capacity constraints and conditions create concerns. These relate principally to ' journey to work' trips where the future residents will leave the car garaged at home and will use the available peak hour public transport service in the locality which in most cases will be more convenient. Therefore it is essential that sufficient on-site parking be provided for these cars which otherwise would be parked on street; · there are numerous other trips that are not conducive to public transport use and the nature and scope of these is continuing to grow in line with current travel trends. These include recreational, shopping, educational and social trips which in many cases occur during the evening and on weekends, where public transport services are downgraded or may not be available. In these circumstances, public transport does not provide a suitable alternative to private car use. The reliance on a private car for these trips is often the most convenient and safest mode of travel and penalising residents by not allowing parking for the these trips is in my view an unnecessary and unreasonable limitation of the residents … 21 In determining these disparate positions, I have also considered the submissions regarding the appeal by Jaguar Investments Pty Ltd v City of Sydney NSWLEC 337, on a nearby site in Potts Point, where Commissioner Tour found that: 43. The rates proposed in DCP 11 are not justified by traffic studies and Council has resolved that the DCP is an interim document that is to be reviewed. Nonetheless the document must be the focal point for the consideration of the merit of the application. In varying parking rates the objectives of the DCP are to be met. 22 These findings were based primarily on the evidence of the Court appointed expert, Mr Hallam who addressed the question of whether the restriction on resident parking in the development reduced the level of the traffic and therefore achieves the DCP objectives? 23 On the basis of his surveys, Mr Hallam concluded that: · there is no statistical relationship between parking supply and the peak period traffic generation of the units surveyed, meaning that increased parking provision does not correlate with the increase traffic generation in peak periods; · car ownership in new residential developments in the original South Sydney area are higher than census data indicates for the whole area and substantially higher than rates allowed under DCP 11; · there is an indication of lower car usage for commuting in a development with high public transport accessibility; · recreation is an important car trip purpose for many residents, particularly on the weekend … 24 In that case, Commissioner Tour decided that it was reasonable to allow some increase in carparking spaces over that prescribed in DCP. 25 It therefore seems to me, that there is a reasonable correlation with these conclusions and those of Mr Darroch and Mr Pindar. That being the case, I consider it reasonable to rely on their opinions and exercise the discretion allowed in DCP 11, particularly section 3.2.1, to depart from the parking guidelines because of the type of units proposed, in this particular location. 26 But more importantly, I am persuaded to accept their conclusions on the basis of the recently adopted parking standards in LEP 2005, which prescribes 2 car spaces for each 3 bedroom unit. Presumably this development standard has been adopted to achieve the desired parking objectives for the area and as it applies to similar residential development sites within 50 m of the subject site i.e. the northern side of Wylde Street. I accept that this represents the reviewed parking requirements for this particular locality. 27 Insofar as Ms McMahon was unable to assist the Court with any details of the review of DCP 11, it is apparent from the documents in Exhibit C, which are Working Paper 6-Parking Guideline Rates, and the draft South Sydney Land Use and Transport DCP that a review has recently been undertaken with the input of experienced planners and transportation consultants. Interestingly these documents suggest controls and design solutions for each large ( > 140 sq m) 3 bedroom units of 2 car spaces, where the Land Use and Transport Integration Index (LUTI) is low, which applies to the subject site. 28 This suggested control is consistent with the recently adopted development standard in LEP 2005 and is consistent with the opinion of Mr Darroch and Mr Pindar, that it is appropriate to allow the proposed 18 car spaces because they achieve the objectives for carparking. Therefore as the additional 4 car spaces can be comfortably accommodated on the site and will not cause unreasonable traffic disamenity/parking in surrounding streets, I consider it reasonable to allow each of these large 3 bedroom units to have 2 carparking spaces, which results in the overall provision of 18 car spaces on the site. 29 The other contested issue concerns council's requirement for the deletion of the northern balconies, which accords with the neighbours objections regarding possible view losses, and privacy/noise disamenity from the use of these balconies. In considering these impacts, I note that the applicant has clarified the specification for the balconies, which are for a 1.57 m wide slab, above which is clear glass balustrading. 30 According to Mr Darroch, this specification is required to: · maintain the architectural integrity of the design by providing co-ordinated, balanced balconies around the exposed southern, western and northern elevations, · satisfy the minimum BCA requirements for fire protection, without the need to provide drip watering systems within the existing 2.4 m floor to ceiling height existing units, · provide sufficient overhang for solar control along the northern elevation and allow for safe window cleaning. 31 In response to the neighbour's objections regarding privacy loss, Mr Darroch says that these northern, side elevation balconies only extend 2.4 m along this facade and have limited utility due to their restricted 1.57 m width. When compared with the larger, primary front balconies, which have panoramic city and water views, their use will be significantly restricted and any disamenity will be minimal. Furthermore he says that because the minimum separation to the adjoining Stanford Hall windows is in the order of 8.6 m, he considers this adequate to minimise amenity impacts, in the subject context of the existing building separation relationship. 32 I also note the applicant's agreement to impose a restrictive covenant on the title of each unit preventing access to the balcony area, east of the balustrade extension, except for the purpose the window cleaning. 33 Ms McMahon does not consider the northern balconies necessary or reasonable because their separation distances to 'Stanford Hall' is inadequate, which is likely to cause disamenity. In support of this position, she refers to the provisions of SEPP 65 - building separation, which provides for buildings over 3 storeys and between 5-8 storeys to have separations of: · 18 m between habitable rooms/balconies; · 13 m between habitable/balconies and on habitable rooms; and · 9 m between not habitable rooms. 34 In this context, reference is also made to provisions of South Sydney DCP 1998 - Clause 2.4 Amenity, which deals with separation distances and provides that: Despite the above, direct views between living area windows of dwellings are to be screened, obscured or offset to ensure maximum privacy. Balconies in any wall plane are not permitted within 6.0 metres of any other directly facing wall plan that does not have windows or balconies, or within 12.0 metres of any other directly facing wall plane with windows or balconies. 35 Accordingly, as the proposal does not comply with the separation distances, she considers these northern balconies should be deleted. 36 In further support of this conclusion, she relies on the application of the planning principles for assessing impact on neighbouring properties stated in Pafburn v North Sydney Council [2005] NSWLEC 444 for her following assessment: .. the proposed northern elevation balconies fail to comply with planning controls pertaining to separation distances and encroach upon privacy levels and view corridors. As previously discussed the northern balconies are not required in order to ensure sufficient area of private open space. This can be achieved through the provision of proposed balconies on the southern and western balconies. The removal of these balconies will not impact upon the defined floorspace area of the proposal and is considered to be a reasonable response to ensure the provision of adequate amenity. It is considered that the northern balconies should be deleted as there are sufficient balcony areas on other elevations and the removal would minimise amenity impacts including view losses and privacy upon the adjoining building. 37 Ms Mcmahon also assessed the application in terms of the planning principles stated in Super Studio v Waverley Council [2004] NSWLEC 91, dealing with any reasonableness and necessity for a proposal. Because the proposal incorporates additional southern and widened western balconies, she considers they are sufficient to service the proposed large open plan apartments and it is therefore reasonable to delete the northern balconies. 38 In determining this issue, I have also considered the details in Exhibit J, where the architect Alex Popov states: · the design approach for this development has been to bring the existing building back to its essential structural elements and replace the facade with an environmentally responsive façade; · the balconies on the northern and southern side of this development have taken their dimensions from the existing balconies on the northern side which are of sufficient width to provide required fire separation and shading to the adjacent windows. The balconies and horizontal spandrels on the northern and western elevations play a vital role in providing required shading to the windows in these elevations; · the new balconies are supported by slender columns which provide a fixing point for balustrades, louvres and privacy screens. These devices form the architectural expression of this development and so the placement of the columns and width of balconies is critical in the overall aesthetic; · the balconies on the northern and southern facades have been purposely made the same width when viewed from the west. When viewed from the west, it is important that the balconies are the same width to maintain the rhythm of elements which provides the architectural expression. If the northern balcony were to be made narrower than the southern, the western elevation would appear ' lop-sided'… 39 Having considered these competing positions, in terms of the evidence and observations on the view, I am satisfied firstly, that the proposed transparent balconies will not cause unreasonable loss of views from units on the adjoining property. 40 I also accept the evidence that the proposed redesign of the exterior of this existing building is of a high order, of which the balconies are a significant contributing element. As the views of the front (western) elevation are critical from the public domain, I also accept that the desired aesthetics are achieved by the inclusion of the co-ordinated and balanced side balconies. In my assessment, the aesthetics of the building will be severely compromised by deletion of the northern balconies as suggested by Ms McMahon. 41 On balance, I give greater weight to the necessity to retain the restricted northern balconies for aesthetic considerations, on the basis that the other western and southern balconies will provide the main outdoor activity areas. So that any restricted use of the northern balconies, is likely to cause minimal amenity impacts on the neighbouring properties. Therefore the intent the aforementioned planning principles addressed by Ms McMahon is reasonably achieved, subject to the restricted use of these northern balconies. Notwithstanding this, I acknowledge that the proposed 1.57 m balconies have some potential to increase privacy and aural disamenity. 42 But in the circumstances in this case, it seems reasonable to me that some allowances and balancing be undertaken in respect of likely amenity changes occurring due to the significant reduction in units in the overall development. Also, appropriate discretion exercised considering the previously established separation distances and relationship between these existing buildings, where the prescribed separation distances for new buildings cannot practically be achieved. At present there are 4 possible, separate occupancies on each floor, with a number of balconies and windows that face Stanford Hall with the potential to cause disamenity. In my assessment, the proposal significantly reduces opportunities for disamenity from the use of the limited northern balconies, considering the likely reduction in occupancy on each floor. 43 However consideration of the evidence indicates to me that minor adjustments to the balcony details could result in a more acceptable balance to both parties concerns. These adjustments would maintain the proposed 1.57 m slab width for safety and aesthetic reasons. However the position of glass balustrading would be maintained along the entire southern and western elevations as proposed, but recessed along the northern elevation return, to provide a maximum clear width of 1.1 m, so as to minimise pedestrian use and any associated disamenity. 44 Furthermore, I consider it reasonable that this effectively reduced width balcony may extend for the further length of the windows to facilitate safe window cleaning. In my opinion, this would maintain the proposed balconies the along the visually prominent western elevation and maintain the restricted balconies along the northern elevation, which is unlikely to be readily discernible and accordingly maintains the architectural rhythm of the design. Conclusions 45 Having considered the evidence, the submissions and undertaken the view I accept there will be significant benefits from the attractive redesign of this existing serviced apartment building and corresponding reduction in the number of units. This redesign has addressed the existing arrangement of the northern neighbouring units and substantially reduced the opportunities for disamenity due to overlooking and noise nuisance, whilst maintaining and in some cases expanding the western views towards city, for these neighbouring units. 46 With regard to the appeal against the original deferred commencement conditions 3 and 4, I note that the parties have agreed to amendments, which satisfy the residents of the neighbouring units in Stanford Hall. I accept that these amendments are reasonable for approval. 47 Insofar as the proposal results in a significant reduction in the number of the units, nevertheless they are relatively large, having floor areas in excess of 250 sq m. Consequently I accept Mr Darroch's evidence that the location, size and style of these units will attract higher socio-economic residents, who will most likely require 2 car spaces. Under these circumstances, I consider the DCP allows some flexibility to suit the particular circumstances and local conditions and also the social and economic status of the likely residents of development. 48 On this basis then, the allowance of 2 car spaces for each of these large 3 bedroom units seems reasonable because the site can comfortably accommodate them and this will achieve the objective of minimising the unreasonable overflow of parking onto surrounding streets, where parking is scarce according to Mr Pindar. 49 But importantly and in support of this conclusion, I consider higher and determinative weight should be given to the recently adopted development standard in LEP 2005 which prescribes 2 carparking spaces for each large 3 bedroom unit in the City of Sydney, that applies to nearby sites. As mentioned earlier, the evidence before the Court indicates to me that DCP 11 is to be treated as an interim document and notwithstanding this, still allows for the exercise of discretion in the determination of the number of carparking spaces, depending on the particular locational circumstances. 50 In the ultimate, I rely on the evidence of Mr Darroch, who presented detailed knowledge of the original formulation and implementation of DCP 11 and the site-specific assessment by Mr Pindar, that the provision of the proposed 18 car spaces is appropriate and meets the objectives in the DCP, to merit conditional approval. 51 With respect to the other outstanding issue concerning the impact of the northern balconies, the evidence indicates to me that the architectural integrity of the redevelopment can be substantially maintained and satisfactory amenity impacts on the occupants of the adjoining building achieved by way of the relatively minor redesign, as suggested of the northern balconies, so as reduce their width. Accordingly the parties are directed consider this option within 14 days and notify the Registrar of any further arrangements to complete this matter, before final orders are made. ___________________ R Hussey Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.