Land and Environment Court of New South Wales CITATION : Huntington & MacGillivray v Hurstville C C [2005] NSWLEC 449 APPLICANT Huntington & MacGillivray PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 10433 of 2005 CORAM: Bly C KEY ISSUES: Development Consent :- Amendment of development consent for a residential flat building - character - ceiling - height - internal amenity Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Hurstville Local Environmental Plan 1994 Hurstville Development Control Plan DATES OF HEARING: 5/08/2005 EX TEMPORE JUDGMENT DATE : 08/05/2005 APPLICANT Mr M. Ball, town planner LEGAL REPRESENTATIVES: RESPONDENT Mr P. Rigg, solicitor of Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 5 August 2005 10433 of 2005 Huntington & MacGillivray v Hurstville City Council JUDGMENT 1 On 2 August 1999, Hurstville City Council granted development consent No. 1999/0163 for a three­storey plus basement residential flat building at Nos. 39-41 Pitt Street, Mortdale. The building for which consent was granted is presently under construction and according to the photographs is nearing completion. 2 This appeal relates to an application under s 96 of the Environmental Planning and Assessment Act 1979, ("the EPA Act") to incorporate a new mezzanine floor in each of units 7, 8 and 9, together with a stairway providing access thereto from the living rooms below. These mezzanine areas will have widths of between 3 and 3.1 m with lengths of between 6 and 8 m. They each have balustrades and overlook the living areas from which they obtain light and air. The floor to ceiling heights within these mezzanines range variously between, by scale, about 1.5 m, 1.8 m, 2.1 m and 2.6 m, taking into account the pitched roof configuration. 3 Apart from the possible installation of skylights in the roof, the proposed changes to the building will not have any apparent effects on the external appearance of the building. 4 The site of the development is included in Zone No. 2, under Hurstville Local Environmental Plan 1994 , and in this zone residential flat buildings are permissible with development consent. 5 Relevantly applicable to the application is the so called Interim Residential Development Code ("the Code"), which I am satisfied should be treated as a development control plan (consistent with its own description in part 1), prepared under s 72 of the EPA Act, for the purposes of s 79(C) of that Act. 6 The application was notified to owners and residents of neighbouring properties, and one letter of objection was received. That letter expressed concern about a possible increase in the height of the building and resulting overshadowing. In this regard I note that the proposed changes will not increase the height of the building, and that as a consequence there will be no resulting loss of sunlight to that objector's property. 7 The application was refused at council's development assessment committee meeting held on 1 June 2005, for reasons relating to: + The exceedance of the maximum number of storeys permitted under the code. - The development would be inconsistent with the desired character of Development Area D under the code. - The development would not be in the public interest in that it would set an undesirable precedent. - The mezzanine space does not provide adequate amenity for occupants in relation to natural light and ventilation. 8 The reasons for refusal effectively became the matters in issue at the appeal. 9 On behalf of the respondent council expert evidence was given by Ms A Aversa-Morassut, a town planner, and Mr G Deehan, a health and building surveyor. On behalf of the applicant expert evidence was given by Mr W Long, a town planner, who is also qualified as a health and building surveyor. 10 According to the DCP the site is situated in an area described as Development Area D, being the only area in Hurstville where three-storey development is permitted. The DCP describes this area as one that is closely related to retail centres and railway stations with high amenity in terms of access to services. The objectives of Development Area D include the encouragement of higher density housing forms, and the encouragement of high quality developments. 11 Under the heading Characteristics, the expected built form in this area will be three storeys of habitable area. Under the heading of Building Height and Form, the relevant objective is, to ensure that new development is compatible with the nature of existing development. To achieve this, control of dwelling height and form is achieved by the use of a building envelope which controls the building height, side and rear setbacks et cetera. 12 The particular controls for the building envelope involve a plane projected at 45 degrees from a height of 1.5 m above natural ground level at the boundaries to a maximum height of 12 m. 13 It was not in dispute that in terms of building height and form and the stated envelope controls that the existing building would, even with the proposal, continue to comply. However concern was expressed by Ms Aversa-Morassut, and there was no dispute about this, that as a result of the proposal the development would comprise a four-storey building. 14 The purpose of the storeys control is unclear. In this case, I have great difficulty accepting that it is a form of control that makes any difference to the envelope controls applicable to Development Area D. In this regard, I do not see how describing this building as four-storeys, rather than three, makes any difference in terms of its presentation in the public domain. 15 I am satisfied that the existing building as proposed to be modified by this proposal would not adversely affect the character of the surrounding area or result in the building presenting any incompatibilities with adjoining or nearby development. 16 It was also suggested that the storeys control can be interpreted as a form of density control. Again I have some difficulty in accepting this, but the reference on p 54 of the DCP to this area having development, which contains a maximum of three storeys of habitable area is perhaps an indication of such an interpretation. However, the use of storeys as a means of controlling density, is a fairly blunt planning tool. In this context I note that there is a density control in pt 4 in the form of a number of dwelling units relative to site area, and that the development would continue to comply with this requirement. 17 In the circumstances I am satisfied that these mezzanine floor areas would not add to the amount of habitable area in the building such as to cause the development to have an excessive density. This becomes more so taking into account the applicant's contention, and I think this was agreed between the two experts, that the mezzanine areas are not habitable rooms, so they probably should not be counted as habitable area. 18 I am nevertheless concerned that despite the poor amenity that this additional floor space would have, these areas would probably be used for habitable purposes. One consequence of this is that the approved and constructed parking arrangement would no longer comply with council's car parking requirements. There would be a deficiency of two car parking spaces. 19 As already described, these mezzanines would have ceiling heights ranging variously between about 1.5 m and 2.6 m. The usual minimum requirement for floor to ceiling heights in the Building Code of Australia ("the BCA") is 2.4 m. I accept that the BCA objective to safeguard occupants from injury or loss of amenity would be unlikely to be adversely infringed in terms of safety, but amenity would, despite the provision of skylights, likely to be a problem. 20 According to my analysis the extent to which the ceilings comply with the 2.4 m standard is virtually negligible. Although a person of average height can access much of the floor area of these mezzanines without bumping their head on the ceiling the physical amenity of these spaces is to my mind unsatisfactory. Also, absent ventilating skylights, I agree that the availability of light and air to these spaces would be unsatisfactory. 21 The applicant has agreed to provide skylights but I do not accept that this would be sufficient to overcome my concerns about the amenity of these spaces, which as I have concluded are likely to be used for habitable purpose. 22 An additional concern is that as a result of the provision of these mezzanines, the living rooms in these dwellings will have reduced amenity and useability. These rooms presently have (according to the drawings) a floor to ceiling height of 2.7 m, and the mezzanines will project down into these rooms reducing these heights by 300 mm. Whilst the unaffected parts of these rooms will have higher cathedral type ceilings, the quality of these spaces will, to my mind, as a result of this projection, be adversely affected. Another concern that arises as a result of the provision of these mezzanine floors, is that stairs will need to be constructed to provide access to them, and these stairs will reduce the amount of floor space available in the affected living areas, and the consequence of this especially in unit 8 would appear to be that the usability of that living room is adversely affected. These are consequential, but not dete An additional concern is that as a result of the provision of these mezzanines, the living rooms in these dwellings will have reduced amenity and useability. These rooms presently have (according to the drawings) a floor to ceiling height of 2.7 m, and the mezzanines will project down into these rooms reducing these heights by 300 mm. Whilst the unaffected parts of these rooms will have higher cathedral type ceilings, the quality of these spaces will, to my mind, as a result of this projection, be adversely affected. Another concern that arises as a result of the provision of these mezzanine floors, is that stairs will need to be constructed to provide access to them, and these stairs will reduce the amount of floor space available in the affected living areas, and the consequence of this especially in unit 8 would appear to be that the usability of that living room is adversely affected. These are consequential, but not determinative, concerns. 23 Considering all of these matters together leads to the conclusion that this is not an application that warrants approval. In principle, however, and despite a design of this kind indicating a non-compliance with the number of storeys, subject to resolution of the matters of concern that I have raised, schemes of this kind might otherwise be acceptable. In my view the issue of precedent does not arise. 24 The orders of the Court will therefore be: 1. The appeal is dismissed. 2. The application under s 96 of the Environmental Planning and Assessment Act 1979 for the amendment of Development Consent No. 0163 of 1999 to allow the installation of 3 mezzanine floors in the building under construction at No. 39-41 Pitt Street, Mortdale, is determined by refusal. 3. Exhibit A is retained. ___________________ T A Bly Commissioner of the Court Ljr/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.