> Land and Environment Court of New South Wales CITATION : Architects Johannsen and Associates v South Sydney Council [2003] NSWLEC 117 APPLICANT: Architects Johannsen and Associates PARTIES : RESPONDENT: South Sydney Council FILE NUMBER(S) : 10834 of 2002 CORAM: Bignold J KEY ISSUES: Appeal :- Development Appeal-multiple dwellings-evaluation by reference to Urban Design DCP-non-compliances with controls-non-achievement of performance criteria and stated objectives of DCP. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 79C CASES CITED: DATES OF HEARING: 14-15/04/2003 DATE OF JUDGMENT: 05/16/2003 APPLICANT: Ms S Duggan, Barrister SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr S Griffiths, Solicitor SOLICITORS Pike Pike and Fenwick JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Matter No . . 10834 of 2002 Coram : Bignold J 16 May 2003 ARCHITECTS JOHANNSEN AND ASSOCIATES Applicant v SOUTH SYDNEY COUNCIL Respondent JUDGMENT A. INTRODUCTION 1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 ("the EP&A Act") against the refusal by South Sydney Council ("the Council") of a development application for the erection of five terraced style dwellings at premises known as 301-303 Belmont Street, Alexandria located at the corner of Belmont and Maddox Streets (the development site). 2. In hearing the appeal, I have been assisted by Commissioner Moore pursuant to the Land and Environment Court Act 1979, s 37(1). 3. The development application has had a protracted history. It was originally lodged with the Council in December 2001 when the proposal was for six dwellings. It was amended in May 2002 to propose five rather than six dwellings. In July 2002, the Council resolved to defer determination by inviting the Applicant to lodge amended plans addressing five specific matters of design identified by the Council, including the relocation of ground level carparking to a basement level, achieving a consequent reduction in building height. 3. On 24 October 2002, amended plans were lodged with the Council in response to the Council's invitation. However, they did not implement the design changes that had been suggested by the Council. 4. On 31 October 2002, the present proceedings were commenced against the Council's deemed refusal. 5. On 19 March 2003, the Council considered a Report which presented the Council with the option of either granting deferred commencement consent (as had been recommended to the Council in July 2002) or refusing development consent. The Council decided to refuse development consent for reasons that essentially are the same as the issues raised in the Council's amended Statement of Issues that had been earlier filed in the present proceedings (a copy of which is annexed hereto and marked "A"). B. THE DEVELOPMENT SITE AND ITS CONTEXT 6. The development site comprises two existing adjoining allotments and has frontages to Maddox Street, Belmont Street and Belmont Lane – being at the northern end of the block bounded by Maddox Street, Belmont Street, Belmont Lane and Huntley Street. The Maddox Street frontage of the site faces in a generally northerly direction. Presently erected on the eastern portion of the site is a single storey cottage with setbacks from both Belmont Street and Maddox Street. This building is in a significant state of dilapidation. On the western portion of the site is located a single storey industrial building with a large doorway to the Maddox Street frontage and a significant brick facade presenting to Maddox Street. The frontage to Maddox Street is 27.4m and that to both Belmont Street and Belmont Lane is 16.6m. The site has an area of 453m2. 7. An inspection of the site was taken in company with the parties on 14 April 2003. The view also included an examination of the streetscape in Maddox Street between Lawrence Street and Mitchell Road; an examination of streetscape in Mitchell Road between Maddox Street and Huntley Street and an examination of streetscape in Belmont Street between Huntley Street and the road closure barrier to the north of Maddox Street. An inspection was also undertaken of the interior of the property at 305-307 Belmont Street to assist with an assessment of the impact of the proposal on the amenity of the residents of this property. 9. My detailed evaluation of the context of the proposed development is hereafter set forth. C. The proposed development 8. The proposed development involves the demolition of the existing buildings and the construction of five attached terraced style dwellings each having three separate levels. Car parking is provided in separate garages for each dwelling and is located at the rear ground floor of each dwelling. The garages are accessed along a common driveway entered from Belmont Lane. All the dwellings will face Maddox Street. 9. Each dwelling at ground level comprises: · its garage space; · a room which is designated as a studio or home office; and · an entrance area which provides access to this home office, the stairway to the first floor and the garage for the dwelling. 10. At the first level, each dwelling has an open plan area for the whole floor comprising kitchen, dining and living areas. Each dwelling has a landscaped terrace to the north overlooking Maddox Street and a smaller landscaped terrace on the southern side at this level. 11. It is proposed that units 1 and 2 would have three bedrooms and a bathroom on the second floor. Units 3, 4 and 5 would have two bedrooms, a bathroom and a small laundry on the second floor. D. Evidence in the proceedings 12. Evidence was given the proceedings on behalf of the Applicant by Mr J Johannsen, the architect for the project and Mr A Smith, the Applicant's consultant town planner. 13. Evidence was given the proceedings on behalf of the Council by: · Mr C Blyth, the Council's consultant town planner; · Mr M Hoffman, a resident of 310 Belmont Street; · Mr P Sackville, a resident of 325 Belmont Street; and · Mr J Eleftheriou, a resident of the neighbouring property to the south being 305-307 Belmont Street. E. The relevant planning instruments 14. The principal planning instrument is the South Sydney Local Environmental Plan 1998 ("the LEP") which applies to the whole of the city except for some express exclusions. The site is zoned 2(b) Residential (Medium Density) and the proposed development is permissible with consent. 16. Like most of all of the lands to which the LEP applies, the development site is included in a Conservation Zone ("C14 Cooper Estate Alexandria"). Although the LEP prescribes additional controls for development within Conservation Zones no issue is raised in this case from the heritage conservation perspective. 17. The LEP prescribes very few controls on development (except for the basic delineation of various conventional zones). 18. This is deliberate since one of the declared principal objectives of the LEP as expressed in cl 7 is— (f) to create an integrated planning framework of land use controls which allow detailed provisions to be made in development control plans. 19. This objective is effectuated by the making of South Sydney Development Control Plan 1997: Urban Design" (the Urban Design DCP) which contains detailed planning provisions including Urban Design Principles (Part B) Environmental Design Criteria (Part E) and Design Criteria for Specific Types of development (Part F). Cl 2 of Part A states the following purpose of the Urban Design DCP: The purpose of this Plan is to provide detailed design and environmental standards, illustrate the urban development objectives embodied in South Sydney LEP 1998, and achieve a high quality built environment with the proper balance between development, conservation and environmental sustainability. 20. Clause 2 of Part A also declares the "aims" of the Urban Design DCP which include the following: · to provide detailed design principles, criteria and controls so that development responds to its context and is aesthetically harmonious and environmentally compatible with the existing built environment and the Public Domain. · …………….. · …………….. · To provide for flexibility and an integrated approach to the development process. 21. Clause 4 of Part A is headed "How to Use this Plan" and includes the following content— This Urban Design Plan is an integrated resource document based on a set of design elements. It adopts a performance-based system of control that focuses on matters to be addressed called performance criteria, to achieve desired outcomes. This approach allows flexibility and innovation by not restricting design solutions to a particular prescriptive standard (except for health and safety reasons). The emphasis of the Plan is on the assessment of applications on merit to achieve the best possible balance between the diverse and sometimes conflicting issues that affect development sites. The chart describes the way the design elements are presented. Explanation Where relevant, describes the rationale for the elements and gives supporting information Objective(s) Describe the primary purpose and intent of each element, and are further clarified by performance criteria. Performance Criteria Set out the means to achieve the objective(s). The criteria offer a guide to best practice while providing designers and developers with the opportunity to develop a variety of design responses. Not all performance criteria will be applicable to every development. Controls The controls complement the performance criteria and are examples of ways to achieve the performance criteria. They are not an alternative prescriptive form of regulation nor do they preclude other ways. All applications must include a written statement of environmental effects (SEE) that identifies the ways by which the proposal satisfies (or does not satisfy) the relevant performance criteria, either as stated in the controls or other innovative means. 16. DCP 11, Transport Guidelines for Development 1996 ("the Transport DCP"), provides the framework for calculation of on-site car parking provisions and operates in conjunction with the Urban Design DCP provisions relating to carparking. F. ADJUDICATON ON The issues in contest 23. The issues in contest are those stated in the Council's Amended Statement of Issues. Generally speaking, it is not in dispute that the proposed development does not comply with the relevant controls expressed in the Urban Design DCP in respect of the following matters— (i) building height (where the relevant control is 6 m and the height of the proposal ranges between 8 m and 10.2 m); (ii) private open space and landscaping (where the relevant control is for the provision of landscaping at natural ground level on not less than 25 per cent of the site area and the proposal provides negligible landscaping at natural ground level); (iii) Floor space ratio (where the relevant control is 1:1 and the proposal has a floor space ratio ranging from 1.17:1 to 1.29:1 (depending upon the manner in which "gross floor area" is calculated); and (iv) Set-backs (where the relevant control is for a minimum 4 m set-back from all street frontages and the proposal provides no set-back from its four boundaries (three to public roads and one to adjoining residential/commercial development in Belmont Street). 24. Notwithstanding these non-compliances with the specific controls, the Applicant's case is that the proposal satisfies the performance criteria specified in respect of the relevant urban design criteria. The Council's case contests this proposition. It's case is that not only does the proposal not comply with relevant controls prescribed by the Urban Design DCP but that it does not comply with the relevant objectives and performance criteria stipulated in the Urban Design DCP. 25. Thus, to frame the contested issues by reference to the manner in which the Urban Design DCP is intended to operate, the question is whether the proposed development fulfils the relevant performance criteria stipulated in respect of the several relevant aspects of urban design so as to achieve the stated objectives for those aspects notwithstanding the obvious non-compliances with a number of the relevant controls. 27. This formulation accords with the manner in which the competing cases were presented in that the ultimate evaluation required by s 79C of the EP&A Act, focussed upon the provisions of the Urban Design DCP and cl 28 of the LEP. In my opinion, this was the correct focus in the present case. 26. Having regard to my specific findings on the various matters hereafter discussed, I have come to the conclusion that the proposal does not satisfy either the relevant performance criteria or the relevant objectives prescribed by the Urban Design DCP and that accordingly development consent should not be granted in this case. 27. In so concluding, I have also had regard to the factors enumerated in cl 28(1) of the LEP. My consideration of those factors (in tandem with my consideration of the relevant provisions of the Urban Design DCP) has led me to conclude that the proposal is an overdevelopment which does not fit well within its physical context and in particular— (i) that the proposed development does not "reinforce and enhance the streetscape and character of the locality" (cl 28(1) par b); and (ii) that the proposed development is not "compatible with the scale and design of neighbouring development" (cl 28(1) par (c)). 28. In so concluding, I have taken into consideration in favour of the Applicant the fact that various professional servants of the Council have during the processing of the development application expressed opinions that are favourable to the proposal by reference to the Urban Design DCP. 29. None of those servants gave evidence but their written opinions were included in the Council's documents that were tendered in the case (Exhibit C). 30. I have also taken into consideration, in favour of the Applicant's case, the fact that the proposed development has its principal addresses to Maddox Street (which forms its most extensive common boundary) and that the existing development in Maddox Street is more varied than, and is generally of a different type and scale from the terrace style residential development which prevails in Belmont and Lawrence Streets which intersect with Maddox Street and extend beyond it both in a northerly and southerly direction. Maddox Street is a connecting local road located between Mitchell and Euston Roads Alexandria both of which are principal roads traversing non-residential zoned areas of Alexandria. It also extends easterly beyond Euston Road to Bourke Road traversing Industrial areas, but this section of the road has no relevance for the present case. 33. This feature of the development site (ie having a principal frontage to Maddox Street) somewhat complicates a true appreciation of the proposal's physical context, but even if it were appropriate to ascribe some priority or dominance to the Maddox Street feature of the proposal over its Belmont Street feature, that would still not in my evaluation, support a conclusion that the proposal "reinforces and enhances the streetscape and character of the locality" and is "compatible with the scale and design of neighbouring development" within the meaning of cl 28(1)(b) and (c) of the LEP. But in truth, and notwithstanding that the proposal's principal address is to Maddox Street, the concepts of "streetscape" and "locality" and "neighbouring development" contained in cl 28 of the LEP necessarily call up the entire physical context of the development site, including Belmont Street. 31. In what now follows, I explain in greater detail, and by reference to specific contested issues, my reasons for concluding that the proposal is not an appropriate form of development for its context (both existing and prospective). (a.) The Context of the Proposed Development (i) The streetscape of Maddox Street 18. Maddox Street runs generally east-west with two relevant planning transitions occurring in that portion of its length between Mitchell Road and Euston Road. The first of these, from east to west, is the transition in zoning which occurs at Lawrence Street. To the east of Lawrence Street, the land is in Zone 10 – Mixed Uses – a zone which permits residential flat buildings. The land from and including the western side of Lawrence Street to the eastern side of Mitchell Road is in Zone 2(b) – Residential (Medium Density). Within this section of Maddox Street, however, there is a height control transition at Belmont Lane. The height control for this zone to the east of Belmont Lane (including the site) is 6m whilst to the west of Belmont Lane it is 9m. (ii) Buildings on the intersection of Belmont Street and Maddox Street 19. The site occupies the south western corner of this intersection. Immediately to its north is a three-storey building fronting Belmont Street which appears to have been constructed in the latter part of 19th-century or the early 20th-century. It has been adaptively reused for residential apartments. The side of this building presenting to Maddox Street steps down from east to west with a private open space at the rear accessible by a roller door from Belmont Lane. Diagonally opposite the site is an industrial building fronting Belmont Street which has been adapted, in the comparatively recent past, by the addition of two residential apartments as an upper storey above the existing industrial use. Immediately across Belmont Street to the east of the development site is a comparatively recent freestanding two-storey dwelling house. (iii) The streetscape in Belmont Street 20. The streetscape in Belmont Street within which the proposal should be considered is effectively defined by the mid-block Street closures in Belmont Street both to the north and south of Maddox Street. This streetscape is predominantly one of terraced style residences dating from the latter part of 19th-century or the early 20th-century. There is a mix of one and two storey residential buildings in these portions of Belmont Street on either side of Maddox Street. In Belmont Street, on the same side as, and to the south of, the development site, there are two originally single storey industrial buildings which have been adaptively reused for residential purposes. Each of these buildings is constructed to the street alignment and presents an industrial facade to the street which is higher than that for a conventional single storey residential building. (iv) The interface with the height control across Belmont Lane 21. The development site is subject to a 6 m height limit at its frontage to Maddox Street. To its west, across Belmont Lane, there is a transition, within the same zone, of height limits so that the site immediately across Belmont Lane fronting Maddox Street is subject to a 9 m height limit. Although presently an industrial operation similar to that of the western portion of the development site, it is reasonable to assume that this property will be redeveloped at some future time. However, demolition or adaptive reuse would both be options for this site. During the course of the view, terraced style development fronting Mitchell Road was observed which was partly 3 and partly 4 storeys high sitting on underground parking which provided a podium of up to 1 m in high above ground level. The Applicant contends that the present proposal, in effect, would act as a transition between a likely redevelopment of the western side of Belmont Lane and the scale of the two-storey house development of the eastern corner on the southern side of Maddox Street. (v) The presentation to Maddox Street 22. Coloured elevations were tendered, on the half of the Applicant, for both the Maddox Street and Belmont Street elevations of the proposal. The Maddox Street elevation shows development with no side setbacks and a podium presentation at the ground level broken by two entranceways used to access the dwellings above. Each of these entranceways is softened by plantings in planter boxes. This facade is also broken, in two places, by a view through its upper portions to planter box vegetation on the northern first floor terraces of the dwellings. The presentation is clearly that of a three-storey building with dormer style skylight windows facing north in the roof line of each dwelling. There is no ground level landscaping other than the limited vegetation around the entranceways and the further limited vegetation noted below on the Belmont Street façade. (vi) The presentation to Belmont Street 23. The coloured elevation to Belmont Street clearly shows a three-storey structure with no setback to this street. The ground floor is a substantial solid podium from the Maddox Street frontage of the allotment to the rear boundary relieved only by the number of louvred openings and some minimalist plantings toward the rear. The first and second floor presentation, whilst softened by the plantings in the proposed planter boxes on the front and rear terraces on the first floor level, is nonetheless that of a solid structure approximately centred on the site and covering more than half the length of this frontage. (b.) The bulk and scale of the proposal 24. Mr Blyth, in his evidence, readily acknowledged that the design of the proposed building is of high quality but said that the building is of a bulk and scale that is inappropriate for the site and streetscape. On the other hand, Mr Smith, in his written statement of evidence, summarised his view of the proposed development by saying that it: presents an appropriate scale, compatible and complementary with the site and its context; will not dominate and overshadow the Public Domain; achieves high environmental amenity; is not excessive in scale and is compatible with the predominant height of the adjoining development, as seen the wider context of the site, being a linear block form with three street frontages. 25. The Urban Design DCP sets a number of objectives and performance criteria for new development in 2.3 Height and Scale. The relevant controls provide that the building height should be no greater than the height specified in the Urban Design DCP height control map. However, the controls also provide that the height limit may be varied in exceptional circumstances for infill linear development. In these circumstances, the controls provided that the building height is not to exceed the building envelope control line. The building envelope control line is determined by the width of the street which the proposed development fronts. From the width of Maddox Street, the Applicant uses a diagram contained in the Urban Design DCP at page 75 which provides a diagrammatic basis for calculating the building envelope control line to derive the profile for the building. This shows that a maximum ridge height of 12 m would be permissible whereas the ridge height to the top of the upper dormer style skylights is only slightly in excess of 10 m. The envelope control line is depicted in the Applicant's plans on each of the east and west elevations. 26. The Applicant contends that the proposal is linear infill development and thus should be permitted to exceed the otherwise applicable 6 m height restriction. In addition, the Applicant contends that the proposal should be read in the context of the streetscape of Maddox Street and, in this regard, Mr Smith gave evidence that the streetscape of Maddox Street comprised a varied mix of building forms including buildings that were of the scale proposed by the Applicant. He distinguished the Maddox Street streetscape from about of the fine grain residential streetscape of Belmont Street. 27. On the other hand, Mr Blyth gave evidence that it was more appropriate to regard any development on the site as needing to conform with the residential development in Belmont Street and, further, that there was no consistency of pattern in the streetscape on Maddox Street between Mitchell Road and Lawrence Street. 28. From the view, it was apparent that there was a mix in the relevant streetscape portion of Maddox Street. However the mix was not one which predominantly favoured higher or more intense development. The three-storey building directly to the north, which fronts Belmont Street, also steps down toward the rear and has a private open-space portion facing Belmont Lane. There is no development, within the 6 m height limit area of this portion of Maddox Street which presents such a lengthy and high front aspect to Maddox Street as that proposed by the Applicant. 29. In my opinion, the concept of continuous infill linear development does not apply to the development site. In this context, the development site is an "island" rather than filling in of a space between adjacent buildings on either side. It is clear to me that the concept, in the context of the Urban Design DCP, envisages meeting a need for a degree of uniformity and cohesion in development with adjacent buildings which is not the case for the proposed development, which abuts three public roads. 30. Although the fact that the development site has three street frontages might warrant some relaxation of the Urban Design DCP provisions in order to achieve excellence of design on the site (the DCP affords such an opportunity for corner site development to be higher), I prefer the evidence of Mr Blyth that, although an excellent design, the proposal is not appropriate for the site. In my opinion, it seeks to achieve too much and does so without having appropriate regard to the constraints which apply to require a reasonable contextual fit to both the Belmont Street and Maddox Street streetscapes. For this fundamental reason, the proposal does not warrant approval. 31. In addition, as next discussed, the excessive bulk and scale proposed also produces unacceptable impacts on the immediate neighbours' amenity. (c.) The impact on the neighbouring property at Nos 305/307 Belmont Street 32. Mr Eleftheriou raised two matters which were of concern to him as adverse impacts of the proposal on his property (which fronts Belmont Street and is immediately adjacent to the site on its southern side). 33. First, he was concerned that unacceptable overshadowing would be caused to the courtyard private open space in the centre of his property and to two areas for which solar access was provided through skylight style windows. These two areas were, first, the master bedroom in front section of building on the site and, second, to the mezzanine area in the rear section of building on the site. This latter section of building is presently being utilised as office space but his evidence was that it is intended to convert it to residential space in the near future with the mezzanine area becoming the bedroom area for this residential space. He is proposing to relocate to other premises his graphic design business. 34. Second, he was concerned that the proposed development would have a significant adverse impact on the privacy of his premises. He felt that the design would permit overlooking into his courtyard in a fashion which would have a significant adverse impact on his privacy. Such overlooking would come from the southern first floor private open spaces for a number of the proposed dwellings and from the bedroom windows on the southern side of the second floor of the proposed dwellings. He was also concerned that there would be considerable impact on the acoustic privacy of his courtyard from the proximity of all of the five southern terraces in the proposal. (i) Overshadowing 35. The Applicant provided a series of comparative shadow diagrams demonstrating the existing shadow and the shadow which would be cast by the proposed development for 9 AM, 10 AM, 11 AM, 12 noon and 1 PM on 21 June. After 1 PM, the adjacent courtyard is in complete shadow which is in identical form whether or not the proposed development is permitted. 36. At 9 AM, the existing shadow is cast across the entire surface of the courtyard. At the southern wall of the courtyard, it appears to be at approximately waist height. There is no shadow cast on the dormer style windows the bedroom area at the front of the dwelling nor is there any shadow on the dormer style windows on the rear building section. 37. At 10 AM, there is no change to the shadow over the courtyard or the rear dormer skylight windows. However, the front dormer skylight which services, inter alia, the principal bedroom of the dwelling, is shadowed as to approximately 90 percent of its height. Mr Eleftheriou gave evidence that this was of concern as he and his wife enjoyed the present unrestricted morning sunlight into this bedroom. 38. At 11 AM, there is again no change to the shadow position to the courtyard or to the rear dormer skylight windows. The shadow to the front dormer skylight has, by this time, reduced to approximately 20 percent of the window's surface. 39. At 12 noon, there is no effective difference between the impact of the shadows cast by the proposal and those which presently affect the neighbouring property from the site. 40. The Urban Design DCP, at 5.1 Energy efficient site layout and building design, includes the relevant control for overshadowing of neighbouring properties. It provides: New development does not create any additional overshadowing where solar access is less than two hours between 9 AM and 3 PM at the winter solstice. This control is clearly not breached by the present proposal. Although there is some impact on the principal bedroom of the neighbouring property, this impact is limited, effectively, to a period concluding shortly after 10 AM. The rooms, including the principal living space, which receive sunlight through the front dormer skylight, will continue to receive nearly five hours solar access between 9 AM and 3 PM at the winter solstice. In this regard, the proposed development's impact on the neighbouring property is not unreasonable. (ii) Privacy 41. The Urban Design DCP provides, in 1.4 Private Open Space, for a number of performance criteria for the private open space of proposed developments. The relevant criterion, this context, is that which reads "Private open space is sited and designed having regard to … the need to maintain privacy of nearby dwellings". 42. In the present instance, the first floor southern terraces of units 1,2 and 3 May each potentially have some scope for overlooking the courtyard of the neighbouring premises. With respect to the terrace of unit 1, the angle of vision toward the adjacent property's courtyard is oblique and is across planter boxes approximately 2.5 m wide on the southern side of its own terrace and the terrace of unit 2. The plantings in each of these planter boxes are proposed to be plants which are one metre high. The combined effect of this is that there is no likelihood of overlooking from this terrace into the courtyard of the adjacent property. With respect of the terrace of unit 2, it is also buffered from the wall to the courtyard of the adjacent property by a planter boxes of the same size of that proposed to unit 1 with a similar planting treatment. The consequence of this is that there is also no likelihood of overlooking from this terrace into the courtyard of the adjacent property. 43. However, with respect to unit 3, the position is somewhat different. In this instance, unit 3 is the first of the three eastern units which has a floor level which is slightly stepped up from the floor level off to west of units. The first floor level of the eastern units is some 185mm higher than those of units 1 and 2. In addition, the planter boxes for unit 3 is proposed to be 1625 mm wide although with similar 1 m high plantings. The northern wall of the adjacent property is approximately 4 m high and the eastern elevation of the proposed development shows that the top of the planter box for the eastern units is at a similar height. It is therefore likely that there would be oblique views to the southwest from the terrace of unit 3 into the private open space of the adjoining property at least to the extent of the southern portion of the courtyard – an area which appeared, on view, to be used for outdoor entertaining or dining purposes. I consider that this element in the present design is unacceptable and, whilst not in itself providing sufficient basis to reject the application, it nonetheless contributes to its overall unacceptability. 44. With respect of the possibility of overlooking from the bedrooms on the second floor, it is presently proposed that the southern bedrooms of units 3, 4 and 5 would have fixed horizontal louvres which would ensure privacy for the adjoining property. With respect to units 1 and 2, the bedroom windows for each of these units have a 7150 mm separation from the boundary with the adjoining property. There is a further separation of some 1.8 m from the boundary of the southern property to the windows to its western mezzanine area. However, the Applicant submitted that if there were privacy concerns with respect the windows of these bedrooms, that could be resolved by way of condition requiring similar fixed horizontal louvres the windows of these bedrooms. Although the separation between the bedrooms of units 1 and 2 is probably sufficient to ensure privacy for any bedroom which may be established in the mezzanine area of property next door, any residual concerns could be resolved by the imposition of a condition such as that proposed by the Applicant. 45. Of greater privacy concern, however, is the likely acoustic privacy impact of the first floor private open spaces in the proposed development on the neighbouring property. Although it is contended on behalf of the Applicant that these are the south facing and the smaller terraces of each of the developments and would thus not be the primary private open space of each of them, these terraces are nonetheless of substantial size and capable of use for entertaining and recreational purposes. 46. The Urban Design DCP sets out two objectives in 4.1 Visual and Acoustic Privacy. These objectives are: · To site and design buildings to meet projected user requirements for visual and acoustic privacy. · To ensure development minimises noise and overlooking to adjacent development.. 47. As was correctly pointed out on behalf of the Applicant, the Urban Design DCP does not set out any specific performance criteria or controls directly relating to the protection of acoustic privacy between neighbouring properties. However, a control is given which requires that noise transmission between buildings is minimised by locating living rooms, garages and other noisy areas of a building away from bedrooms of adjacent dwellings. It is my view that this control is applicable to the separation between the terraces of units 4 and 5 and the dormer style window of the bedroom of the adjacent property. In addition, the performance criteria in 1.4 Private Open Space in the Urban Design DCP include a criterion of the need to maintain privacy of nearby dwellings. 48. I consider that the terraces on the southern side of the proposed development are likely to have, in combination, a significant cumulative adverse impact on the quiet enjoyment of the private open space in the courtyard of the adjacent property. Despite the absence of specific relevant controls, I do not consider that this aspect of the development has paid sufficient regard to the appropriate acoustic privacy objective of the Urban Design DCP and has not attempted to minimise the noise impact on the adjacent development. I therefore consider that the acoustic privacy impacts on the adjacent property are unacceptable. In the course of her final address, Counsel for the Applicants indicated a willingness, if required by condition of consent, to not use these terraces other than for access purposes and as terrace gardens. This modification to the proposal would no doubt lessen impacts on the adjoining dwelling, but in the absence of design modification, it would be difficult to enforce since the terraces would still exist. (d.) Floor Space Ratio Issues 49. The FSR map in the Urban Design DCP sets the maximum FSR for the site as being 1:1. However, the two expert town planning witnesses were unable to agree on what should be considered as the FSR of the proposed development for reasons discussed below. The Applicant contends that the FSR is 1.17:1 whilst the Council's town planning consultant considers that the correct calculation produces a FSR of 1.293:1. The Applicant concedes that, if the two areas of disagreement concerning the basis of calculation are resolved in favour of the position advanced by the Council, then the correct calculation of the FSR is 1.293:1 as contended by the Council. 50. The first area of disagreement related to whether or not a paved entrance area on the ground floor of each dwelling should be included in the FSR for that dwelling and the second was what should be the calculation of the internal staircase areas to be included in the FSR. The two issues are linked as discussed below. 51. With respect to the ground floor area, the Applicant argues this should not be included for two reasons. Firstly, the Applicant contends the area is not enclosed within the outer face of the external walls and thus does not fall within the definition of gross floor area in the Urban Design DCP. The second contention is that, if this proposition is not successful, the space falls within the definitional exclusion as forming part of car parking and associated access needed to meet the requirements of the Council. It is submitted that these areas constitute part of the necessary associated access for the garage spaces of the dwellings. 52. Each of the ground floor areas sought to be excluded is exclusively alienated to the dwelling with which it is associated. The preferred method of preventing access from the public domain to each of these areas is the use of what was described as a palisade gate. Other than this gate, each such area is entirely enclosed within the external walls of each dwelling. I do not consider that the contrivance of using a gate rather than a door removes these areas from being included within the definition of gross floor area in the Urban Design DCP. 53. Each of these areas provides access to four separate locations for a person standing within the space. It provides access to: · the staircase to the main body of the dwelling; · the studio/home office located on the ground floor at the Maddox Street frontage and each dwelling; · the pavement of Maddox Street; and · the garage area for each dwelling. 54. It is not tenable to conclude that these areas are solely included in the proposed development for the purpose of providing access to the car parking space of each dwelling. Nor is it tenable to conclude that this is the dominant reason for provision of these spaces. Each of these areas is an essential integrated element of general access to the ground and upper floor usable areas of each dwelling. As such, they necessarily form part of the FSR of each dwelling in the context of the Urban Design DCP where FSR regulates the intensity and scale of development. 55. With respect to the staircases, the position adopted by the Applicant's town planner is that, as staircase from the ground level to the first floor leads to the front door of each dwelling, this staircase does not form part of the dwelling and should not be counted as part of the FSR. With respect the staircase from the first to second floors, being a staircase entirely within the dwelling, the Applicant's position is that this staircase should be counted as part of the floor space of one or other floor but not of both. 56. I accept the Council's case that the FSR should include two staircase areas. In my view this is a necessary consequence of my determination that the ground floor entrance area constitute part of the FSR of the each dwelling. 57. As a consequence of the conclusions I have reached above, it follows that the correct calculation of the FSR is that prepared by the Council's expert of 1.293:1. 58. The Urban Design DCP provides, in the controls in section 2.2 Floor Space Ratio, for the possibility of a bonus floorspace incentive of up to 0.25:1 if certain criteria relating to the provision of public benefits by the development are satisfied. In addition, it is the practice that such public benefits can be conferred on the community by financial contribution to the Council of these purposes thus qualifying a development for such a bonus floorspace incentive. 59. As I have found that the correct calculation for the present proposal produces a FSR of 1.293:1, this bonus provision would not be available. However, Ms Duggan, on behalf the Applicant, submitted that the FSR of the proposal could be limited to 1.25:1 by condition and thus fall within the scope of a permitted development with the maximum bonus floorspace incentive applied to it. Whilst, perhaps, superficially appealing as a method of bringing the proposal within the permitted maximum which might be contemplated by the Urban Design DCP, I was offered no assistance as to what amendments might be made to the plans to implement such a condition and what the resulting impacts of such amendments might be. Absent demonstration of what would be the design consequences of such a condition, I do not consider it appropriate to adopt this suggested approach. 60. As I have determined that the FSR exceeds the permitted maximum even if it were given the benefit of the bonus floorspace incentive provisions, it is unnecessary for me to consider whether or not it would be appropriate to permit such an incentive to be given to this proposal, other than to note that the case advanced by the Applicant for the bonus was not cogent or compelling on either basis contended for. 61. Although these controls are standards that are capable of variation in appropriate circumstances, it is obvious that the problems which I have identified elsewhere as being reasons for refusal of the application are manifestations of the inappropriate degree of exceedance of the prima facie FSR derived from the Urban Design DCP for the development site. This outcome is very much the function of the provision of ground floor parking in the proposal, which I now consider. (e.) Parking 62. Several of the resident objectors expressed their concern that the construction of five dwellings on development site would inevitably lead to a greater demand for on street parking as the number of parking spaces proposed to be provided was less than the number of vehicles that would reasonably be anticipated to be generated by the development. 63. The Transport DCP sets out the calculation basis for provision of car parking for residential developments such as that proposed to be erected on the development site. It would require the provision of seven car parking spaces for this development. The Applicant proposes the provision of five car parking spaces – being one space per residence. 64. The Council officer's analysis of parking issues, in July 2002, suggested that the proposed parking should be considered acceptable for the reason the site's proximity to public transport and the Transport DCP is a guideline document which recommends maximum limits. That report also noted that a bicycle spaces provided within garage of each unit in satisfaction of the Transport DCP. 65. It is clear from the inspection of the area that "on street" parking is at a premium, as an inevitable consequence of the historic subdivision pattern at a time prior to development of a motorised society. Given the number of bedrooms in the proposed development, it is likely that there will be a demand for parking somewhat in excess of the number of spaces proposed to be provided. However, I accept that such increased demand would likely be modest and that, although a slight negative for the proposal, would not constitute a reason for its refusal. I do note, on the other hand, that the shortfall in parking, compared to be Transport DCP's requirements, is, itself, a function of the scale of development proposed for the site. 79. A different, and in my opinion, a far more important aspect of the carparking provision made by the proposal, was criticised by Mr Blyth, in his appraisal of the proposal, namely the fact that the carparking was not provided underground, as preferred, if not required, by the Urban Design DCP. There can be no doubt that Mr Blyth is correct in asserting that the provision of carparking at ground floor level significantly adds to the perceived height and bulk of the proposed building. Additionally, as Mr Blyth observes the ground floor carparking provision creates the problems of (i) alienating the street frontages of the proposal; and (ii) creating a visually unattractive wall effect along the Belmont Street frontage. It may be, as the Applicant contended, but did not demonstrate, that underground parking was not feasible. However, this does not gainsay the inevitable consequences of the proposal including a separate level of ground floor chiefly devoted to carparking accommodation. G. Conclusion AND ORDERS 66. For all of the foregoing reasons, I have concluded this development should not be approved. Although I have concluded so because of my findings on the contested issues, which I have expounded above, they unite to attest to the overriding fact that the Applicant has designed a proposed development on the development site which is of greater height, bulk and scale than that which is reasonably capable of being supported by the site in its context having regard to the relevant provisions of the Urban Design DCP. The single most graphic illustration of this conclusion is provided by the photomontage depicting the proposal from the north-eastern corner of the intersection of Maddox and Belmont Streets (Exhibit G). This photomontage, in my view, demonstrates that, no matter how worthy be design of the proposed development, its existence on the development site would clearly be an inappropriate overdevelopment. A more modest proposal with a lesser development yield would enable a more contextually sympathetic and complying development to be designed. 67. Accordingly, I make the following orders: 1. The appeal is dismissed. 2. Development consent is refused. 3. The exhibits (other than Exhibit 1) are returned. -----------------------OoO--------------------- I HEREBY CERTIFY THAT THE PRECEDING 85 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE N R BIGNOLD. 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