Bassett and Jones Architects v Waverley Council [2005] NSWLEC 195

Land and Environment Court of New South Wales

CITATION : Bassett and Jones Architects v Waverley Council [2005] NSWLEC 195

APPLICANT Bassett and Jones Architects

PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 11126 of 2004

CORAM: Brown C

Development Application :- partial demolition of an existing pair of semi-detached shops - erection of a mixed commercial and residential dwelling - inconsistency with zone objectives - innappropriate mix of uses - amenity impacts - public interest KEY ISSUES:

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996

DATES OF HEARING: 07, 23/02/2005

DATE OF JUDGMENT: 02/24/2005

EX TEMPORE JUDGMENT DATE : 02/24/2005

APPLICANT Ms Mary-Lynne Taylor, solicitor SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr S Patterson, solicitor SOLICITORS Wilshire Webb

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

24 February 2005

11126 of 2004 Bassett and Jones Architects v Waverley Council

JUDGMENT

1 This is an appeal against the refusal by Waverley Council (the council) of DA 206/2004 for the partial demolition of an existing pair of semi-detached shops and their residential accommodation and the erection of a mixed commercial and residential development at 129 and 131 MacPherson Street, Bronte (the site). The proceedings were heard as on On Site Hearing. 2 The site is rectangular in shape with a frontage to MacPherson Street of 12.12 m, a rear boundary to Chesterfield Lane of 12.55 m, a length of 45.72 m, giving a total area of 558 sq m. The subject building forms part of an existing strip shopping centre providing services to the surrounding community. Many of the buildings within this section of MacPherson Street have commercial tenancies on the ground floor with residential apartments above. Across MacPherson Street and beyond the neighbourhood shop area are residential developments primarily in the form of residential flat buildings. Behind the subject site the form of development is largely single dwelling residential development. 3 The proposal involves the substantial demolition of the existing building although the front façade of the building is to be retained along with 1200 mm of the side walls. The proposal involves the construction of three building forms within this site. The first building fronts MacPherson Street and contains one commercial tenancy and 2 x 3 bedroom units over three storeys. The middle building is three storeys in height and contains 2 x 3 bedroom apartments. The rear building contains 2 x 1 bedroom apartments within two storeys. The basement level contains parking bays, bicycle parking and garbage and storage facilities. 4 The site is within Zone No. 3(c) Business Neighbourhood pursuant to Waverley Local Environmental Plan 1996 (the LEP). The objectives of the zone are: (a) to provide a range of shops and low intensity commercial uses that serve the daily needs of adjacent residential neighbourhoods, and (b) to encourage the mixing of residential development within those uses. 5 Clause 10(2) requires that consent shall not be granted unless the development meets one or more of the objectives of the zone. Clause 27 provides requirements for floor space ratio (FSR). For the 3(c) zone a maximum FSR of 0.5:1 is provided, however an additional FSR of 0.5:1 is permissible under certain circumstances. Clause 28 provides for a maximum height of 9 m. There was no dispute that the proposed development satisfies the maximum and additional FSR of 1:1 and the maximum height requirement. The LEP provides no other numerical development standards for the site. 6 Clause 32 states: Where the proposed development is on land adjoining land in another zone regard must be given to the objectives of the adjoining zone. 7 In this case, the opposite side of Chesterfield Lane is within Zone 2(a) Residential - Low Density. 8 The council filed a Statement of Issues containing 12 issues. The issues relating to some acoustic and privacy impacts (Issue 4), FSR (Issue 6), height (Issue 7), the retention of the original façade (Issue 8) and the interruption of the allotment rhythm (Issue 9) were addressed through amended plans and were not pressed by the council. 9 The remaining issues can be conveniently grouped into the following areas: (1) whether the proposal is consistent with the objectives of the 3(c) zone and whether the amount of residential development is excessive (Issues 1 and 2), (2) whether the rear building component will have an unacceptable impact on the rear yards of nearby residential properties (Issues 5 and 10) and (3) whether the central building will have an unacceptable impact on the adjoining properties, (Issue 3). 10 The local residents raised a number of issues not raised by the council. These relate to: (1) impact of excavation, (2) construction traffic, (3) the integrity of the neighbourhood commercial zone, (4) heritage impacts, (5) noise and exhaust fumes from the basement car park and (6) loss of trees. 11 The first issue relates to the mix of residential development and commercial development and involves the objectives of the zone and cl 27 relating to FSR. 12 Mr Mitchell Reid, a town planner employed by the council, states that the proposal is inconsistent with the zone objectives. He maintains that the objectives are set out descending priority. The primary objective (Objective (a)) is to provide shops. The second objective is to encourage a mix of residential development (Objective (b)). In his interpretation, the descending priority indicates that residential development is encouraged only where it forms an appropriate mix with the primary use, i.e., local shops. He rejects the proposal as the residential component is the primary function. In his opinion, this proposition is supported by cl 27. In his interpretation of cl 27, there must be an equal proportion of commercial floor area to residential floor area i.e., 50 : 50. As the proposal provides for an 11 : 89 split in favour of residential, Mr Reid concludes that the proposal is inconsistent with the intent of cl 27. 13 The basis of his concern is that neighbourhood centres are not degraded or overpowered by large scale residential developments and the commercial viability of the neighbourhood centre is maintained. 14 Mr Andrew Darroch, a town planner, provided evidence for the applicant. He disagrees with Mr Reid's interpretation of the FSR requirements and cl 27. He states that the LEP does not distinguish between primary or secondary zone objectives. This is confirmed by cl 10(2) where there is a requirement to satisfy one or more of the objectives of the zone. 15 In terms of cl 27, Mr Darroch notes that the clause does not include any requirements that set a ratio of residential to non-residential uses. In his opinion, the proposal provides an acceptable ratio and makes efficient use of the retail potential of the site and in fact, provides an increase in the existing retail floor space on the site. 16 On this issue I agree with Mr Darroch. In considering the approach adopted by Cripps J in Hecar Investments No 6 Pty Limited v Lake Macquarie City Council 53 LGRA 322 at 323, His Honour states: When interpreting delegated legislation the Court ought to be concerned with practical considerations. The Court should adopt the interpretation that leads to a reasonably practical result . 17 In this case, the LEP simply does not provide the words to support the council's interpretation of the zone objectives. If it was intended that the objectives should be prioritised then this could have been simply stated in the LEP, as occurs in other LEP's. While the Court was taken to comparisons with objectives from other zones to support the council's proposition, I am not convinced that it overcomes the clearer and, in my view, unambiguous construction of the zone objectives. 18 In terms of cl 27, I also agree with Mr Darroch. Again, the clause makes no reference to the 50 : 50 split of residential and commercial suggested by Mr Reid. In simple terms, the clause provides for a mixed development with and FSR of 0.5:1. A bonus FSR of 0 : 0.5:1 is available providing it is used for residential accommodation at a level above a ground floor shop. Mr Darroch correctly states that the requirements of this clause do not preclude the provision of residential accommodation as part of a mixed development at ground level. For these reasons, I am satisfied that the proposal addresses the objectives of the zone pursuant to cl 10(2). I am also satisfied that the proposal is consistent with the provisions of cl 27. 19 In coming to the conclusion that the LEP contains no restrictions on the mix of commercial and residential components of a mixed use development, the protection of the existing neighbourhood centre was a matter raised by a number of local residents and resident associations. While there can be little doubt that there are benefits in having a viable neighbourhood centre, there was no information provided to the Court to determine what was actually a viable level of retailing activity for the neighbourhood centre. 20 Notwithstanding this, I am not convinced that the proposed development would have such an adverse effect that it should be refused. The proposal will not diminish the availability of retail space as the existing shopfront is to be retained and the retail space enlarged. I acknowledge that the refurbished retail facility is also likely to be more attractive for future tenants. 21 In terms of the effect of the rear buildings on the properties located on the opposite side of Chesterfield Lane, Mr Reid and Mr Darroch disagreed on the likely impacts. While Mr Reid conceded that the potential overlooking from the recessed balcony of the rear building is not a significant issue, he maintains that the height is excessive and is visually intrusive. Mr Darroch states that the Chesterfield Lane is characterised by structures of varying height and scale on both sides. As the design recedes away from the lane, the building will read as being consistent with other building forms in the lane and not visually obtrusive. 22 With the benefit of the site view along Chesterfield Lane I agree with the conclusions of Mr Darroch. The lane is almost exclusively a service lane with garages, car park entries and loading facilities. The proposal has a height of some 7.2 m at Chesterfield Lane which is below the 9 m maximum height limit. While larger than the development on the opposite side of Chesterfield Lane it is consistent with what could be expected based on the LEP requirements and the different zoning. 23 In having regard to the zone objectives of the Residential 2(a) zone, pursuant to cl 32 of the LEP, I find that the proposal provides a satisfactory response at the zone interface. 24 The impact of the proposed development on the adjoining properties was addressed through oral evidence on site and the submissions provided by the owners of these properties when the application was advertised. 25 Mr Ray Wheeler on behalf of his mother, who owns the property at 127 MacPherson Street, provided oral evidence on-site. The building owned by Mr Wheeler's mother contains a hairdresser on the ground floor (at the MacPherson Street frontage) and four holiday rental units. The two units adjoining the subject site were seen by Mr Wheeler as being adversely affected by way of overshadowing, loss of views and loss of sea breezes. 26 The rear flat was inspected but the other flat was occupied at the time of the view. With an assessment of the likely position of the proposed building it was clear that the views across the rear vacant portion of the subject site would be interrupted and that a significant part of this area would now be occupied by the proposed buildings. While some of the amenity enjoyed from Mr Wheeler's property will be clearly lost, in my view it is an inevitable consequence of the redevelopment of the site. Mr Wheeler's concerns would have greater force if the proposal exceeded the council's development standards, however this is not the case. 27 I also note that the applicant amended the proposal to provide a similar setback to the boundary as provided by Mrs Wheeler's property notwithstanding the absence of any specific setback requirements. I am also mindful of the commercial use of the holiday apartments, as distinct from residential use, and the commercial zoning in concluding that the proposed development does not impose any unacceptable impacts on Mrs Wheeler's property that would lead to the refusal or amendment of the application. 28 The opposite side of the subject site was also inspected by the Court at the on-site hearing. A unit owned by Mrs Nero was also inspected. She raised objection to the lack of side setbacks, the potential overlooking, loss of light and visual bulk. Again, an estimate was made of the location of the proposed development in relation to Mrs Nero's unit. 29 Based on this estimate, I am not convinced that any impact would support the refusal or amendment of the application. Accepting that there are no requirements for side setbacks, I agree with Mr Darroch's statement that if a setback of some 900 mm was required, it would have little visual impact from Mrs Nero's unit. As explained to the Court on the view, the design of the proposed development responds to the characteristics of the adjoining development by providing landscaped breaks between the buildings to respond to the location of windows so as to maintain a reasonable outlook from the windows on the adjoining property. 30 In terms of privacy, the separation distance between Mrs Nero's balcony and the rear dwelling is some 16 m and with this level of separation I accept that overlooking is suitably addressed. 31 I accept that there is likely to be some loss of sunlight to Mrs Nero's unit, however her unit is south facing and the impact is not likely to be significant. 32 Mrs Nero also saw the expanse of the end wall of the central building as a concern although the full extent of the 9 m length of wall is only fully visible at an acute angle. From areas such as the balcony the wall is only partially visible. For this reason, no modifications to the proposal is warranted. 33 Overall, there are no substantive amenity reasons why approval should not be granted. 34 Of the additional matters raised by the objectors or local residents, I am not convinced that they raise any significant issues that would support the refusal of the application. 35 The impact of excavation and construction traffic can be adequately addressed through conditions relating to dilapidation report and the submission of a construction management plan. 36 Noise and fumes from the basement car park are not likely to be a major concern because of the limited number of units and limited likely traffic movement. 37 The retention and rehabilitation of the original façade was not a matter pressed by the council and based on the details provided in the application plans I accept that the proposal satisfactorily addresses this matter. 38 The loss of trees, while undesirable in my view, is not a sufficient reason to reject the application. 39 For these reasons the orders of the Court are: 1. The appeal is upheld. 2. DA 206/2004 for the partial demolition of the existing buildings and the erection of a mixed commercial/residential development at 129-131 MacPherson Street, Bronte, is approved. 3. The exhibits are returned with the exception of Exhibits 4, 5, 6 and E. __________________ G T Brown Commissioner of the Court rjs