Land and Environment Court of New South Wales CITATION : Zenere v Canterbury City Council [2006] NSWLEC 263 Applicant: Albert Zenere Architects PARTIES : Respondent: Canterbury City Council FILE NUMBER(S) : 10836 of 2004 CORAM: Roseth SC KEY ISSUES: Development Application :- non-compliance with FSR development standard; validity of SEPP 1 Objection DATES OF HEARING: 15/05/2006 and 16/05/2006 DATE OF JUDGMENT: 05/19/2006 Applicant: LEGAL REPRESENTATIVES: Mr P McEwen, SC instructed by Mr F Pomare of Lapaine Pomare Forster Respondent: Mr A Seton, solicitor of Marsdens JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 19 May 2006 10836 of 2004 Albert Zenere Architects v Canterbury City Council JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal by Canterbury City Council (the council) of a development application to demolish the existing structures and erect a five-to six-level building over basement parking containing shops and 25 dwellings on lot 101 DP 747279, known as 221-235 Homer Street, Eastwood and lot 12 DP 10801, known as 208 Wardell Road, Eastwood. The site 2 The site is on the northern side of Homer Street, at the eastern end of the Eastwood centre, a strip shopping centre established in the 1920s. The buildings in the centre are mainly two-storeys with higher floor to ceiling heights than usual in contemporary buildings. Immediately to the west is a vacant corner site that was formerly a service station. An undetermined development application for a mixed use building on that site is now on appeal at this Court. To the east two-storey commercial buildings with residences on the second storey extend to Bakers Lane. To the north is a traditional residential area of mainly single-storey houses. The boundary between the commercial and the residential zones runs along the northern boundary of the site. The proposal 3 The applicant proposes to demolish the existing buildings on the site and to erect a five-to-six-level building over basement parking. The ground floor contains shops or offices facing Homer Street and dwellings facing to the rear. The four floors above are residential. A new lane and a single dwelling at 308 Wardell Road are also part of the proposal. 4 The applicant lodged the development application in April 2004. A long process of negotiations, revised drawings and re-notifications of the proposal followed. The council's bundle of documents indicates that, on several occasions, the council, or one of its committees, or one of its planning officers have recorded their opinion on the proposal or made resolutions in respect of it. There is no complete consistency in these opinions, although I do not think that the inconsistency is any greater than could be accepted when so many people are involved in applying their subjective judgment to a proposal that is of a much greater scale than any existing building in Homer Street. On some occasions the notes/resolutions indicate that a fifth storey may be acceptable as long as its impact on Homer Street is appropriate. On others, there is a clear indication that a fifth storey is not acceptable. 5 The applicant filed the appeal in July 2004. Relevant planning controls 6 The Canterbury Planning Scheme Ordinance (the PSO) zones the site General Business 3(a1) (221-235 Homer Street) and Residential (a) (208 Wardell Road). The only numerical control that applies to this application is in cl 44, which permits a maximum Floor Space Ratio (FSR) of 2:1, provided the non-residential FSR does not exceed 1:1. 7 The council tendered Development Control Plans 9 (Non-residential buildings adjoining residential zones); and 13 (Multiple unit housing code) in evidence. DCP 9 applies a building height plane, which the proposal meets. DCP 13 applies a setback control for the rear, which the proposal also meets. State Environmental Planning Policy 65 – Design Quality of Residential Flat Development and the Residential Flat Design Code (RFDC) apply to the residential component of the proposal. The issues 8 The council submitted a Statement of issues containing ten issues. At the commencement of the hearing the council's advocate, Mr A Seton, submitted that there were four issues remaining in dispute, namely: · whether non-compliance with the maximum permissible FSR of 2:1 was justified, · whether the proposal's visual impact on Homer Street was acceptable, · whether the internal amenity of the apartments was acceptable, and · whether the privacy impact on the residences to the north was acceptable. 9 The experts agreed that the last issue was not determinative, so there remain three issues. I first turn to the impact on Homer Street, since the answer to that issue has a bearing on the non-compliance with the maximum permissible FSR. Impact on Homer Street 10 The council has resolved that the height of this, and presumably neighbouring buildings at street frontage should be at RL 54.9. The proposal complies, and there is no dispute about the first three storeys of the proposal. 11 The applicant's experts were Mr H Sanders, a town planner, and Mr M Harrison, an architect, town planner and urban designer. The council's expert was Mr S. McMahon, a planner and urban designer. Mr McMahon found that the fifth storey had an unacceptable impact. Mr Sanders and Mr Harrison said that the fifth storey was acceptable. 12 It was common ground between the experts that there were no controls on height. Their joint report includes this surprising statement; There was no agreement on the established built form character of the Earlwood Town Centre. 13 It seems to me that, if the experts could not agree on the existing character, which is open for anyone to see who walks along Homer Street, there was little chance that they would agree on the desired future character. And indeed, they did not, as indicated in the joint statement: There was no agreement on the acceptability of the impact generated by the proposed fifth storey or the character of the Town Centre. In Mr McMahon's opinion it was not acceptable; in Mr Sanders' and Mr Harrison's it was. 14 Mr Harrison came to his conclusion (that the height is acceptable) in the following way. The predominant height in the town centre is two storeys, but there are some three-storey buildings and there is one equivalent to the height of four storeys. In any case, the town centre is likely to be redeveloped and the future scale will be similar to that of the subject proposal. In addition, the building is at the eastern end of the centre and may be considered a "bookend". 15 The above reasoning is flawed. Anyone walking through the centre will see it as a two-storey centre. The few exceptions to this are buildings that are much narrower than the subject proposal. It is precisely because the centre may one day be redeveloped (though there are no signs of this now), that the scale of the proposal is so important, as it is likely to indicate the scale that is acceptable in the future. Finally, the site is not in a "bookend" location. It is mid-block and the land to its east is also zoned commercial. If there is a justification for a "bookend" (which I doubt), it is at the end of the commercially zoned strip. 16 I note that the applicant tendered several pictorial interpretations of how the building would appear. Since I spotted some mistake in most of them (and told the parties about it), I have no confidence in their accuracy. For example, the view from directly opposite the building shows the width of the fourth and fifth storeys narrower than they would appear in reality. However, even though they may understate the true impact of the building, the pictures indicate the vast increase in the scale of Homer Street that the proposal represents. 17 It seems to me that Mr McMahon's suggestion that the fifth storey be removed is modest. Even without the fifth storey, the proposal represents the maximum change of scale that Homer Street can comfortably absorb, unless the council intends to entirely change the street's character. 18 I note that the rear of the site is at a zone interface; consequently the planning principle formulated by Bly C in Seaside Property Development v Wyong Shire Council [2004] NSWLEC117 applies, ie As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like (emphasis added). 19 The height of the proposed building at the rear is 19.4m, and there are six storeys facing single-storey houses. The adjoining development is in a residential zone where drastic change of scale is unlikely. In my opinion, the difference in height is too big. This is not an issue of overlooking, but rather the bulk that will be visible from the rear yards of the houses as well as from Wardell Road. 20 I accept Mr McMahon's evidence that the fifth storey is inappropriate. Non-compliance with maximum permissible FSR 21 Mr Sanders and Mr McMahon disagreed on the proposal's FSR, though they agreed that it was more than 2:1. The difference arises out of the question whether or not to include horizontal vents within the floor space. The PSO's definition requires the inclusion of ducts and vents. I do not think that calling them horizontal vents changes this. I accept therefore that the true FSR is 2.16:1, or about 320m2 in excess of the floor space that would comply with the FSR control. I note that the area of the fifth floor is about 370m2. The reason I quoted Bly C's planning principle on zone boundaries was to suggest that, on a site adjacent to an area with residential zoning, the full potential indicated by the permissible FSR may not be able to be achieved. 22 The applicant tendered an Objection under State Environmental Planning Policy 1 to the FSR development standard. Mr Sanders prepared the objection. He assumed the following underlying objectives for the FSR standard: · to control building density, bulk and scale; and · to minimise environmental effects on adjoining properties. 23 Mr Sanders' reasons for non-compliance may be summarised as follows: · The architectural character and layout of the proposal address the Homer Street frontage in a manner that appropriately defines the public domain. · The mass and length of the building has been addressed through the use of varying heights and setbacks, detailing and the use of different materials. · The proposal is well modulated. · The proposal has an acceptable appearance from Wardell Road. · The proposal will not have any significant adverse impacts. · There will be no overlooking or overshadowing. · The proposal will maintain the character of the town centre. 24 With the exception of the last, I accept all the points above. However, none of them provides a valid reason why this proposal should not comply with the permissible FSR. Aspects of good design, such as modulation can be achieved also in a complying building. Moreover, if the objective of the control is to limit bulk and scale, then exceeding the floor space is likely to result in a building of bigger bulk and scale than the makers of the control intended. The objective of the standard is not met. 25 The SEPP 1 Objection is not well founded. It does not justify a variation of FSR development standard. Internal amenity 26 Mr McMahon found eleven aspects of the design that do not comply with AMCORD or the RFDC. He agrees that individually the shortcomings are minor and do not justify refusal; however together they do. Mr Sanders and Mr Harrison agree that the non-compliances are minor, but they think that they are also minor in their totality. 27 Given my finding on the two preceding issues, it is not necessary to evaluate each one of Mr McMahon's criticisms. All that needs to be said is that a new development on a site with a minimum of constraints should be able to meet design guides like AMCORD and the RFDC. I observed that the design is highly complex and some of the dwellings rely on light wells for light and ventilation. If the proposal were otherwise acceptable, I would have required expert certification to demonstrate that each dwelling receives adequate sunlight and ventilation. Objectors' concerns 28 The Court heard the evidence of Mr G Laliotis, a solicitor, who spoke on behalf of six objectors: · Mr and Mrs D Kaloustian of 185 Wardell Road; · Mr and Mrs J and S Markos of 195 Wardell Road; · Mr Tam Trury Huynh of 191 Wardell Road; · Mr and mrs K and D Panagopoulos of 204 Wardell Road; · Mr L Lesmara and Ms H Hieswanto of 197 Warde4ll Road; · Mr and Mrs N and K Ardas of 189 Wardell Road. 29 The following objectors spoke for themselves: · Mr R and Ms C Glynn of 2 Watkin Avenue; · Ms M Gamble of 194 Wardell Road; · Mr K and Ms M Gomes of 10 Watkins Avenue; · Ms P Mardini of 2 Hocking Avenue; · Mr T Burgo of 219 Homer Street; · Mr P Vasallo, the son, and Ms D Mordocco, the daughter of the owner of 206 Wardell Road; · Ms M McQuillan of 183 Wardell Road. 30 The objectors had two major concerns. First, they did not want vehicular access to the development from the new rear lane, but rather from Homer Street. Second, they considered the proposal too big for Homer Street as well as in relation to their own houses. As regards the concern with the lane, I note that the council insisted on access from the rear and the applicant purchased 208 Wardell Road in order to provide it. I do not think that the applicant has the option for any other form of access. 31 The concern with the excessive scale and height of the proposal was the main issue in the proceedings. On that score I find that the objectors have a valid complaint. Conclusion 32 The main difficulty for the parties (and the Court) in this case was that the council had not determined in any planning document the desired future character of Homer Street. The existing scale of the street is two-storeys and, as yet, there are no physical signs of transition. The council's position in relation to this application was that it would accept three storeys at the street frontage with one additional storey set back. The proposal complies with the height at the street frontage but includes two additional storeys set back. 33 In the absence of guidance by the council, the experts and the Court had to rely on their own value judgments. In my opinion, the extent of change in scale that the council accepts, namely a three-storey building at the street frontage with the fourth storey set back, is at the upper end of what Homer Street can comfortably absorb. Even within those parameters, the change in the street's character will be major. In addition, a reduction by one storey would reduce the enormous change of scale at the rear where the site adjoins a traditional residential area. 34 For the above reasons the appeal is dismissed. Orders 1. The appeal is dismissed. 2. Development application to demolish the existing structures and erect a five-to-six-level building over basement parking containing shops and 25 dwellings on lot 101 DP 747279, known as 221-235 Homer Street, Eastwood and lot 12 DP 10801, known as 208 Wardell Road, Eastwood is determined by refusal. 3. The exhibits are returned. ___________________ Dr John Roseth Senior Commissioner 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.