Land and Environment Court of New South Wales CITATION : Aslan Investments v Ashfield Council [2006] NSWLEC 67 Applicant: Aslan Investments Pty Ltd PARTIES : Respondent: Ashfield Municipal Council FILE NUMBER(S) : 10301 of 2005 CORAM: Roseth SC KEY ISSUES: Development Application :- impact on conservation area internal amenity DATES OF HEARING: 13/02/2006, 14/02/2006 and 08/03/2006 DATE OF JUDGMENT: 03/08/2006 Applicant: LEGAL REPRESENTATIVES: Mr D Officer, QC instructed by Ms C Bracks of Abbot Tout Respondent: Mr P Jackson, solicitor of Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth Sc 8 March 2006 10301 of 2005 Aslan Investments Pty Ltd v Ashfield Municipal Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Ashfield Municipal Council (the council) of a development application to demolish the existing buildings and erect a three-storey residential flat building on lot 1 DP 974785, lot 1 DP 129964, lot 1 DP 950605 and lot 1 DP 938576, known as 29-35 Frederick Street, Ashfield. The site 2 The site is an amalgamation of four allotments with a total area of 2,341m2. It is on the eastern side of Frederick Street, between Albert Parade and Eccles Avenue. It is within a residential 2(c) zone and adjoins a low-density zone on the south (the Eccles Street Conservation Area), and on the east (properties facing to Albert Parade). To the north there are two lots containing single-storey houses, which are in the 2(c) zone. Beyond those two lots is a three-storey apartment building. To the west, the site faces to Frederick Street, on the other side of which are low-scale houses. Frederick Street is a noisy arterial road. The proposal and its history 3 The applicant proposes to demolish the existing four cottages on the site and to construct a three-storey apartment building containing 18 dwellings above basement parking for 25 cars. 4 The applicant lodged the development application in March 2003. Following notification, the council received 18 objections. In September 2003 the council's Heritage Advisor, Mr R Moore, wrote a memo headed "Heritage Advice". The memo contains some design suggestions, subject to which the heritage impact of the proposal would be acceptable. The design suggestions have been incorporated in the proposal before the Court. In my opinion, Mr Moore's imprimatur suggests that the proposal fulfils the requirements of cl 3.2.4(iii) and cl 3.6.1 of Development Control Plan 1, in that it contributes to Ashfield's housing heritage. 5 In April 2004 the council's Development Approval Committee considered a report by its planning staff recommending approval; however, the Committee did not accept the recommendation and refused the application. In April 2005 the applicant lodged an application for a review of the council's decision. The report prepared by the council's planing staff again recommended approval; however, at its June 2005 meeting the council took no action to change its original refusal. The applicant lodged the appeal in April 2005. Relevant planning controls 6 State Environmental Planning Policy 65 – Design of Residential Flat Buildings (SEPP 65) applies to apartment buildings of three-storeys and above. The Residential Flat Design Code (the RFDC) is attached to the SEPP to indicate detailed design guidelines. Local Environmental Plan 1985 (the LEP) zones the site residential 2(c). The LEP establishes the maximum height for this site at 9m. Development Control Plan 1 – Dwelling in Residential Zones (DCP 1) sets down detailed criteria, including Floor Space Ratio (FSR) for the site. The issues 7 The council submitted a Statement of issues containing ten issues of which it pressed five at the hearing. At the commencement of the hearing the council's advocate, Mr P Jackson, outlined the main issues as follows: · The proposed building is too big. · The proposed building does not fit into the streetscape. · The amenity of the apartments is poor. · Issues brought up by the objectors. The objectors' concerns 8 The Court heard the evidence of six objectors during the visit to the site. Ms Evelyn Man, who lives at 34 Albert Parade adjoining the lane to the to the east of the site, said that site amalgamation resulted in a massive building, the underground car park protrudes above the ground and the access to the car park is too close to the lane. Mr Andrew Bruno, who lives at 73 Frederick Street, said that his concern was with the traffic impact during construction. He added that the infrastructure could not cope with further development, nor was there a market for more dwellings in Ashfield. Mr John Ciacciarelli, who lives at 36 Albert Parade, mentioned two concerns. First, the proposal was too big. Its closeness to 2(a) zones suggested a smaller building. Second, it overlooks adjoining rear yards. (His third concern was access, but this had been resolved.) Mr John Shorter, who lives at 2 Eccles Avenue at the corner with Frederick Street to the south of the site, said that he was concerned with a three-storey building on his rear boundary. Ms Alison Munro, who lives at 8 Eccles Avenue, was concerned about seeing a large building close to her rear yard instead of trees. She was also worried about impact on streetscape and future residents using Eccles Avenue for u-turns. Mr Gil Candida, who lives at 13 Eccles Avenue, said that the proposal had not had a proper review under SEPP 65, it did not relate to the 2(a) zone, had poor solar access, privacy was achieved through screens rather than good design and the basement was too far above natural ground level. 9 The experts agreed that the external impacts of the proposal (ie overshadowing and overlooking) were acceptable. The more general issues of bulk and internal amenity are also issues adopted by the council and its experts, and are therefore discussed below. Bulk, scale and streetscape 10 The applicant's planning expert was Mr A Ludvik, a planning consultant. The council's experts were Mr N Kennan, a planning consultant, and Mr R Dickson, an architect and urban designer. There were four areas of dispute between them. 11 The first disagreement related to the deletion two apartments, Units 17 and 18. While it was common ground that the three-storey proposal complied with the 9m-height limit identified by the LEP, Mr Kennan and Mr Dickson advocated that at its southern end it should be two-storeys in order to relate better to the single-storey houses in Eccles Avenue. 12 The second disagreement related to the building's orientation. Mr Dickson and Mr Kennan wanted the horseshoe shaped building turned around so that the open side faced north rather than east. The third disagreement related to the northern setback of 5.1m, which, in Mr Dickson's view, should be 6m to provide for an eventual separation of 12m from a future apartment building on 37-39 Frederick Street. I note that DCP 1 does not have numerical standards for side and rear setbacks. I note also that the difference between 5.1m and 6m is not great and that a 5.1m-side setback is larger than occurs in most flat development in Ashfield and elsewhere in Sydney. A 6m-setback would necessitate a complete redesign of the building. For these reasons I do not think that it should be imposed. 13 The fourth disagreement related to the proposal's FSR of 0.7:1. The maximum FSR permitted by DCP 1 for sites with an area between 1,200m2 and 2,500m2 is 0.6:1. For sites larger than 2,500m2 the permissible FSR is 0.7:1. Mr Kennan and Mr Dickson considered that the applicant should stick to the exact interpretation of the requirement, and since the site is short of 2,500m2 by about 150m2, it should comply with the 0.6:1 requirement. Mr Ludvik's argument was that the site is almost 2,500m2 in area and should therefore be accorded the higher FSR of 0.7:1. If the permissible FSR were on a sliding scale between 1,200m2 and 2,500m2, then the FSR for this site would be between 0.68:1 and 0.69:1. This was also the argument adopted in the two planning reports by the council's planning staff. 14 This is a dispute in which each side has a valid point. Given the two council planning reports in favour of the proposal, it is reasonable to assume that Mr Ludvik's interpretation is not foreign to the council, or at least to the council's planning staff. Taking Mr Dickson's and Mr Kennan's interpretation to extremes would mean that a site of 2,499m2 would have a FSR of 0.6:1, while if it was 1m2 larger, it would have a FSR of 0.7:1. Given that the site is so close to 2,500m2, I am inclined to accept that the FSR of 0.7:1 is appropriate in this case. 15 I turn to Mr Dickson and Mr Kennan's suggestion that the two southern apartments on the top floor should be deleted. The reason for the suggestion was that a two-storey building would better relate to the single-storey houses facing Eccles Avenue, which are in a 2(a) zone and within the Eccles Avenue Conservation Area. Mr Ludvik said that the building achieved a reasonable relationship with the Eccles Avenue houses because of the large setback from the southern boundary. The setback is 6.5m. In addition, the rears of the Eccles Avenue properties are separated from the site by a 3.66m wide lane, so that the total setback is about 10m, to which must be added the distance of the houses themselves from their rear boundary. I agree with Mr Ludvik that the setback from the southern boundary is much larger than is usual in flat development and that this distance assists in the transition between the three-storey apartment building and the single-storey houses. 16 There is a further reason why I do not think that it is necessary (or even desirable) to reduce the southern part of the proposed building to two storeys. The building now looks symmetrical to Frederick Street and the deletion of the southern section may result in the appearance of a building that is almost, but not quite symmetrical. This is not to say that there is any particular virtue in a symmetrical design; however buildings that are almost but not quite symmetrical look annoying. I note that the council's Heritage Advisor, Mr Moore, found the proposal's relationship to the Eccles Avenue houses acceptable. I do not know what he would think about a building with part of the top floor chopped off. 17 Finally I turn to Mr Dickson and Mr Kennan's suggestion that the horseshoe-shaped building should be turned around so that the three wings face west, east and south and the opening is to the north. Such a change would have some benefits and some drawbacks. On the positive side, the central courtyard would receive direct northern sun. However, since the east-west dimension of the site is 3m less than the north-south dimension, if the horseshoe were turned around, the central courtyard would have to be 3m narrower. The length of building with northern aspect would be shorter. In view of the mixed benefits and drawbacks, I do not consider turning the building to be justified. Internal amenity 18 It was common ground that the rooms facing to Frederick Street required acoustic treatment. The applicant's acoustic consultant specified the treatment and the applicant accepted this, though, in my opinion, the treatment is not sufficiently clearly and unambiguously shown on the drawings. The treatment requires that the windows to Frederick Street be closed at night, thus necessitating ventilation of the apartments from another external wall. This is provided to varying degrees, though it was agreed that there was scope for improving the ventilation (see below). 19 Mr Dickson criticised the internal amenity of the apartments on the grounds of lack of privacy and solar access. He suggested several changes. The following is a list of his suggestions as well as of possible amendments that were discussed during the hearing. · The floor to ceiling height should be increased from 2.5m to 2.7m as recommended by the RFDC. Mr Ludvik explained that, if the height were increased, the building would no longer comply with the height limit of 9m. I accept that this is a valid reason for the 2.5m high ceilings, even though such low ceilings are not ideal. The LEP's 9m maximum height in the 2(c) zone suggests that the makers of the LEP had in mind a floor to ceiling height of 2.5m, since a three-storey building with 2.7m high ceilings cannot be easily fitted into to the 9m-height limit. The 9m-limit does not suggest an intention to achieve two storeys. · The area above car spaces 20 and 21 should be paved and landscaped. The area referred to is now open to the sky. Mr Ludvik said that this is in order to avoid, or at least reduce the need for mechanical ventilation. I accept that this is a valid reason for keeping part of the parking level open to the sky. · The open space to the north of Units 3 and 4 and to the south of Units 5 and 6 should be made into private courtyards. Mr Ludvik agreed with this suggestion. · A ramp should replace the stairs located in the communal open space area, providing disabled access top the rear of the site and the garbage storage area. Mr Ludvik agreed with this suggestion and provided sketches how it could be achieved. · Units 1, 7 and 13 should be redesigned so that their living rooms face north. During the hearing the possibility of redesigning also Units 2, 8 and 14 with the same objective was also discussed. (The west-facing living rooms of the latter three apartments would receive no winter sunlight because the building protrudes to the north, cutting off their northern exposure.) Mr Ludvik agreed that these redesigns were feasible and desirable. · There was also discussion during the hearing about the possibility of increasing the size of the glazing in the north-facing walls of all living areas. Mr Ludvik agreed that this was feasible and desirable. · A fence and security gate should be provided along the rear boundary of the site. Mr Ludvik agreed that this could be done. · The amount of storage in the basement parking level should be clarified. Mr Ludvik agreed that this could and should be done. · The southern balconies of Units 11, 12, 17 and 18 could be deleted and the windows of Bedroom 2 of Units 12 and 18 could be moved from the south to the east. Mr Kennan and Mr Dickson supported this change, while Mr Ludvik neither supported nor strongly opposed it. In my opinion, it would be beneficial and would to some extent respond to Mr Dickson's suggestion that Units 17 and 18 be deleted. · The glass bricks and acoustic ventilation louvres in Units 1, 2, 7, 8, 13 and 14 could be replaced by opening highlight windows. This would provide almost as much privacy as the glass bricks and a lot more natural ventilation. Mr Cooper thought this would be a far superior design to the glass bricks. My understanding is that the other experts agreed. · The obscure glass privacy screens to the north of Units 5 and 6 and to the south of Units 3 and 4 could be deleted given the opportunity for suitable planting in the planting box. This may not provide perfect privacy but would avoid the enclosing and overshadowing effect of the privacy screens. Opportunity for amended drawings 20 The applicant's advocate, Mr D Officer, submitted that since the proposal could be improved by relatively minor changes, the applicant should be given the opportunity to submit amended drawings. Mr P Jackson, for the council, submitted that the right course for the Court is to refuse the application thus allowing the applicant to prepare a new application responding to the Court's findings. 21 In this case it is reasonable to extend this opportunity to the applicant, provided amended drawings are prepared quickly and only once, and the associated costs are borne by the applicant. The main reason is that the council's planning staff has twice reported favourably on the application. While the elected representatives have not accepted those reports, it was not unreasonable for the applicant to assume that it was pursuing a proposal that would be acceptable to the council. While the proposal in its present form is just short of acceptable, a few changes would bring it well above the line. None of the changes is major and those that involve a change in impact reduce the impact, so that re-notification is not necessary. Findings 22 On 17 February 2006 I made the following findings about the proposal: · The open space to the north of Units 3 and 4 and to the south of Units 5 and 6 is to be made into private courtyards. · A ramp is to replace the stairs located in the communal open space area, as indicated by a sketch by Mr Ludvik tendered during the hearing. · Units 1, 2, 7, 8, 13 and 14 are to be redesigned internally so that their living rooms face north. · The size of the glazing in the north-facing walls of all living areas is to be increased to take maximum advantage of the aspect. · A fence and security gate are to be provided along the rear boundary of the site. · The amount of storage in the basement parking level is to be clarified. · The southern balconies of Units 11, 12, 17 and 18 are to be deleted and the windows of Bedroom 2 of Units 12 and 18 are to be moved from the south to the east. · The glass bricks and acoustic ventilation louvres in Units 1, 2, 7, 8, 13 and 14 are to be replaced by opening highlight windows. · The obscure glass privacy screens to the north of Units 5 and 6 and to the south of Units 3 and 4 are to be deleted. The revised landscape plan is to indicate screening plants in the planter box. The revised landscape plan is to be fully consistent with the architectural plans. · The acoustic treatment suggested by Mr Cooper, including any doors that require ventilation grilles, is to be clearly indicated on all relevant plans and elevations. The elevation and colour treatment indicated by the Heritage Consultant, Mr Moore, is to be clearly indicated on all relevant plans and elevations. (There is some indication on the existing drawings; however, it has not been carried through consistently.) The objective is to avoid misunderstandings at the Construction Certificate stage. Response by applicant to findings 23 The applicant responded to the above findings by amending its drawings, including the landscape plan. In a joint report dated 7 March 2006 Mr Ludvik and Mr Dickson stated that the amended plans have satisfactorily responded to the above findings. The applicant agreed to paying the council's reasonable costs arising out of the revised plans. At a hearing on 8 March 2006 the parties agreed that I make orders in chambers upholding the appeal. Orders 1. The appeal is upheld. 2. Development application to demolish the existing buildings and erect a three-storey residential flat building on lot 1 DP 974785, lot 1 DP 129964, lot 1 DP 950605 and lot 1 DP 938576, known as 29-35 Frederick Street, Ashfield is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 13, 14, G, H and J. __________________ 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.