Land and Environment Court of New South Wales CITATION : Fernhill Property Group Pty Ltd & Anor v Kogarah Municipal Council [2006] NSWLEC 299 APPLICANT Fernhill Property Group Pty Ltd & Anor PARTIES : RESPONDENT Kogarah Muinicipal Council FILE NUMBER(S) : 11534 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Eight storey mixed commercial/residential development, strata subdivision, building height, floor space ratio, amenity impacts and streetscape Kogarah Local Environmental Plan 1998 LEGISLATION CITED: Development Control Plan No. 17 - Hurstville Town Centre Development Control Plan State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment. DATES OF HEARING: 27/04/2006 and 28/04/2006 EX TEMPORE JUDGMENT DATE : 04/28/2006 APPLICANT Mr S Kondilios, solicitor SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Mardens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 28 April 2005 11534 of 2005 Fernhill Property Group Pty Ltd & Anor. v Kogarah Municipal Council JUDGMENT This decision was given extemporaneously and has been revised and edited prior to publication 1 This appeal relates to Development Application No. 330/05 which is for the demolition of an existing building and construction of an eight storey mixed commercial/residential development including strata subdivision at 578 - 580 Railway Parade, Hurstville. More particularly the development is to comprise 18 dwellings, 879 sq m of commercial floor space and 45 car parking spaces in two basements. 2 The site is situated on the corner of Railway Parade and West Street a short distance away from the Hurstville railway station. It has a northern frontage to Railway Parade of approximately 20 m a secondary western frontage to West Street of approximately 43 m and backs onto Empress Lane to the south. It has a total area of about 937 sq m. 3 The site Is located within the Hurstville Town Centre which comprises a mixture of land uses including commercial, retail and residential buildings. Surrounding development to the east and west comprises residential flat buildings including buildings having heights of eight and 15 storeys. Adjoining the site to the east is the eight storey building known as Highcrest at 564 Railway Parade. Land to the south beyond Empress Lane, existing development comprises two and three-storey residential flat buildings and some detached dwellings. 4 The site is zoned 3(b) Business Town Centre under Kogarah Local Environmental Plan 1998 ("the LEP") and in this zone the proposal is permissible with development consent. Relevantly, cl 7(2) of the LEP requires that consent shall not be granted unless the consent authority forms the opinion that the carrying out of the development is consistent with the objectives of the zone. 5 The objectives of the 3(b) zone include: the encouragement, development and expansion of business activities; the provision of a wide range of retail commercial and entertainment facilities; and the provision of multi-unit housing where appropriate. There was no suggestion to the contrary, and I accept that the proposal, is consistent with these objectives and hence the requirement in cl 7 (2) of the LEP its met. 6 Also applicable to the site are the following: + Development Control Plan No. 17 - Hurstville Town Centre Development Control Plan ("the DCP") + State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development ("SEPP 65"). + Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment. 7 Of particular relevance to this application are the provisions of the DCP in relation to building envelopes, floor space ratio, minimum unit sizes, and number of storeys. The general objectives of the DCP relevant to this matter are: (c) To encourage high density development adjacent to the main public transport facilities; (d) To encourage mixed development in individual buildings, such as retail and commercial in the lower levels of residential development; (e) To encourage a high quality building stock which can adapt over time to a range of uses. 8 As a result of the notification of the application seven objections and a petition containing 33 signatures were received. Expressed concerns include: + non-compliance with council's planning controls, particularly in relation to building height, side setbacks and density; + amenity impacts including loss of privacy and views, reduced safety and security, reduced solar access and wind funnelling; + devaluation of property especially as a result of reduced outlook; + exacerbation of existing traffic and pedestrian conflicts; + possible damage to adjoining properties as a result of construction works. 9 The hearing began with an inspection of the site and its environs when the Court heard from the following resident objectors who provided detailed explanations of the above concerns: + Mrs P Rieck of 93/564 Railway Parade + Mr B Gray the strata plan manager for the building known as Empress Tower at 600 Railway Parade + Mr R Owaijan of 67/564 Railway Parade + Mr J Seovaraj the secretary of the owner's corporation Empress Tower. 10 For the purposes of SEPP 65 the proposal was re-assessed by Council's Design Review Panel on 4 August 2005 following an earlier critical consideration of a previous design very much the same as the subject proposal. The panel concluded that there were significant aspects of the design which are unacceptable and required amendment before approval could be recommended. 11 Relevant to the matters in issue in this appeal, the panel was satisfied that the scale of the proposed building in its presentation to Railway Parade was appropriate. It also concluded that density was not a critical determinant. However it argued that: In West Street there is a three-storey commercial building base which provides some sense of human scale at street level. It does not resolve the main challenge in West Street, that of resolving the transition between the eight storeys of the subject proposal and three-storey residential buildings immediately to the south across Empress Lane. The development would loom over these neighbours and exacerbate existing winter overshadowing conditions. It is considered that above the three-storey commercial base, the southern face of the development should be set back to align with the south face of the neighbouring building to its east. 12 In relation to the overshadowing and visual bulk impacts on development to the south the panel noted that such impacts are inherent in the planning controls which have permitted tall buildings to the north of these affected sites and whilst these are capable of mitigation they cannot be fully resolved. 13 A council officer's report was prepared recommending that conditional deferred commencement development consent be granted. The council subsequently decided to defer the development application, inviting the applicant to submit revised plans lowering the height of the building and increasing its set back from the eastern boundary. 14 The respondent council's statement of issues identifies the following essential issues in relation to the proposed building: + The height is excessive and inconsistent taking into account the height and scale of adjoining properties, the existing streetscape and the requirements of DCP 17; + The proposed floor space ratio exceeds the maximum in DCP 17; + There will be impacts on the amenity of adjoining properties in terms of overshadowing, view loss and privacy; + Approval will not be in public interest and an undesirable precedent will result. 15 The Court was assisted by the evidence of the Court-appointed experts: + Ms G Morrish, urban design consultant + Mr I Glendinning, town planning consultant 16 In addition, in relation to concerns regarding wind impacts an expert report prepared by Vipac Engineers and Scientists Limited was provided. 17 In her report Miss Morrish deals with the issues under the following headings. + Height: Railway Parade and West Street, + Amenity impacts to adjoining properties - overshadowing, + Floor space ratio, + Amenity impacts on residents of the existing building to the north-east of the site, + Precedent, + Resident objections. 18 Having considered the evidence of the Court appointed experts, in the light of what council says are the issues and in the light of the resident objections and the submissions of the advocates, I have decided that the determinative issue for the resolution of this appeal is whether the height of the proposed building at the rear is too high, taking into account the provisions of the DCP, the presentation of the building in the West Street streetscape and the built form transition between the proposed building and development to the south across Empress Lane. 19 As for the other matters raised in the appeal, I have considered, in the light of the site inspection, the planning controls, the expert reports available to me, (particularly Mr Glendinning's report in s 3.4), and the amenity impacts on the neighbouring properties to the west and the east. I have not been persuaded that any of these impacts, either separately or cumulatively, are such as to require the modification of the proposal or its refusal. I thus do not agree with the council's contention that the setback from the eastern boundary must be increased, especially given that, as proposed, it significantly exceeds the applicable requirement of the DCP. 20 I also accept that the proposal is not problematical in terms of the Railway Parade streetscape, given the existence of buildings of similar or greater height and the fact that a building of six to eight storeys is permissible on the site immediately opposite across West Street. 21 In her preliminary report, Ms Morrish expressed concern that: + the development proposes a height of eight and a half storeys directly on the boundary of Empress Lane which exceeds the required seven storeys of the DCP; + the development exceeds the maximum floor space ratio, which is not an as of right, FSR under the DCP. 22 Ms Morrish then concluded that the development is unacceptable, as the greater number of storeys results in adverse impacts to adjoining properties and the streetscape by: + adding to the existing and likely future overshadowing for the street and nearby properties; + creating a greater dominance in its building form for the properties to the south of Empress Lane and for West Street itself; + not achieving a suitable transition form to the remainder of West Street. 23 Ms Morrish also concluded, in the context of the requirements of the DCP, that the proposal should be redesigned to reduce its height on Empress Lane and to the majority of West Street to a maximum of seven storeys. 24 In her final report, Ms Morrish reached different conclusions, arguing that the proposal was essentially in accordance with the effective actual height permitted by the DCP and, as a consequence, could be approved. 25 In s 5.0, the DCP controls describe building envelopes to show the capacity and building configuration for particular sites, the subject site being included in Block 38. The applicable controls therein for road widenings, car parking and access, balconies and setbacks are met by the proposal and no issue was raised in relation to these. The controls also provide that the ground and upper floors of a new building can be commercial/residential and, again, no issue in this regard was raised. 26 However, it is plain that the proposal fails to comply with the height and floor space ratio controls as prescribed in the DCP. The maximum allowable floor space ratio is 3.5 to 1, and the proposal, having a floor space ratio of 3.55 to 1, does not comply. 27 In this regard, Ms Morrish conceded that this non-compliance is not justified in terms of better design outcomes and contributes, in a minor way, to the height non-compliance. Despite this, she concluded that it was minor and not determinative. Mr Glendinning also believed that it was not determinative, explaining that he placed greater weight on the design outcomes and amenity benefits derived by providing an increased separation from the Hillcrest building to the east. Moreover, the numerical non-compliance and the impacts of the non-compliance are both minor. 28 For the reasons that these experts have given, I agree that floor space ratio is not a determinative matter. 29 The height controls in the DCP provide for one commercial and seven residential floors to Ormonde Parade and one commercial and six residential floors to West Street. I understand that the reference to Ormonde Parade includes Railway Parade. I also understand there is no issue in relation to the height of the proposal in Railway Parade, nor is there any issue in relation to the configuration of the building in terms of commercial and residential floors. 30 Section 4.1.5 of the DCP explains that heights are expressed in terms of storeys and that commercial storeys are set at 3.6 m floor-to-floor and residential storeys at 3 m floor-to-floor. These dimensions are said to allow determination of the number of storeys that could occur within a given envelope if they were to be either commercial or residential or a combination thereof. Importantly, residential buildings are encouraged to have greater floor-to-floor heights to enable long-term flexibility of use. 31 Whilst the DCP is unclear as to whether the 3 m indicated for residential storeys incorporates the greater floor-to-floor height as sought, I agree with Ms Morrish that it does not. This is because, as she explained, a 3 m floor-to-floor dimension would not be sufficient or appropriate for commercial use. It is thus clear that whilst the DCP height controls establish the maximum number of storeys that can be built on this site, they are ambiguous in terms of the maximum actual height that a building might achieve. 32 By my calculation, a seven-storey building that would be permissible in the zone, with a 3.6 m floor-to-floor dimension, a 500 mm roof parapet and a basement extending out of the ground by the allowable 1.5 m, produces a total building height of 27.2 m. By comparison, an eight storey residential building, with a 3 m floor-to-floor dimension, a 500 mm roof parapet and a basement extending out of the ground by 1.5 m, produces a total building height of 26 m, lower than the hypothetical seven storey commercial building. 33 The absence of height objectives in the DCP does nothing to resolve this conundrum. However, if the DCP was seeking to manage amenity impacts such as overshadowing, it would seem, as suggested by Ms Morrish, that it would have included a maximum building height or a dimensioned building envelope. Conversely, I can understand how a limit as to the number of storeys might assist in dealing with aspects of streetscape and visual presentation. 34 In her final report, Ms Morrish explained, in a more comprehensive manner, utilising an approach similar that I have just described, how she concluded that she is now no longer concerned about the height of the building. She notes in this context that the amended proposal is 26.45 m from ground level to its upper roof, as compared to a development containing seven commercial floors which could have a height of 25.2 m (i.e. 7 x 3.6 = 25.2 m). Clearly this calculation does not allow for a basement projecting out of the ground, or a roof parapet, whereas the actual proposed height to which she refers does include these. She, nevertheless, concludes that when considered against what she now understands can reasonably occur under the DCP, the theoretical non-compliance is either non-existent or minor. 35 Whilst Ms Morrish conceded that the 8 storeys to 3 storeys across Empress Lane might not provide a suitable transition in terms of the principles in SEPP 65, the envelope envisaged by the DCP and the potential to vary the envelope must temper that view. Mr Glendinning agreed, noting that the change in levels across the lane was unfortunate, but this is what is anticipated by the DCP. In particular, the difference in height, if any, between the proposal and what is actually anticipated by the DCP, makes little difference to the shadow impacts to the properties to the south. Similarly, the appearance of the building would be little different. 36 It is also of some relevance to note that the council, in dealing with the development application for the adjoining Highcrest building accepted, that this building exceeded the height limit set by the DCP in the light of a concept plan for the subject building indicating the possible construction of an eight storey building with basement car parking. This was taken into account by the council officer who reported on this application in reaching his conclusion that this application should be approved. He concluded that the lowering of the building would provide no benefits to properties to the south, due to the already existing stark transition between eight storey buildings along Railway Parade and the three storey buildings further to the south along West Street. 37 In this context, I also note that the actual height of the building is very similar to that of the adjoining Highcrest building, although that building has a greater setback from the lane. 38 In terms of its presentation to West Street, I agree with Ms Morrish and Mr Glendinning that the building, when viewed down Empress Lane, will also be read against the backdrop of the eight storey Highcrest building. I also agree that, in this context, the difference between a seven or an eight storey building across the lane to the three storey development in streetscape terms will make little difference. 39 Ms Morrish also, and importantly in my view, takes into account the increased separation between the proposed building and the Highcrest building, which provides greater benefits to that building by comparison with a lower building that would almost inevitably be positioned closer to it. Such benefits include increased daylight access and outlook. I agree that this provides additional support for the non-compliance with the DCP. 40 In all of the circumstances, and giving particular weight to the supporting conclusions of the two Court appointed experts, and having not discovered any determinative public interest issue, I have decided that the development consent as now sought should be granted. Also, given the particular circumstances of this application, including the site and the provisions of the DCP, I agree with Ms Morrish that approval would not create an undesirable precedent. 41 The orders of the Court will therefore be that the appeal is upheld, Development Application No. 330/05 for the demolition of the existing building and construction of an eight storey mixed commercial/residential development, including strata subdivision at 578-580 Railway Parade, Hurstville, is determined by the granting of development consent subject to the conditions in Exhibit 7, as amended. Exhibits 7 and A are retained by the Court. ___________________ T A Bly 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.