Land and Environment Court of New South Wales CITATION : Ashfield RSL v Ashfield Council [2006] NSWLEC 756 Applicant: Ashfield RSL PARTIES : Respondent: Ashfield Council FILE NUMBER(S) : 11360 of 2005 CORAM: Roseth SC KEY ISSUES: Development Application :- variation of FSR standard, sunlight to communal open space, DATES OF HEARING: 22/08/2006, 23/08/2006, 31/08/2006, 19/10/2006 and 01/12/2006 DATE OF JUDGMENT: 12/01/2006 Applicant: LEGAL REPRESENTATIVES: Mr G McKee, solicitor of McKee Legal Solutions Respondent: Mr S Griffith, solicitor of Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 1 December 2006 11360 of 2005 Ashfield RSL v Ashfield Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Ashfield Council (the council) of a development application to demolish the existing buildings and erect a development containing a club, shops, serviced apartments, apartments and dwelling houses with associated parking on lot 1 DP 703400 (346-376 Liverpool Road and 187-193 Norton Street), lot 1 DP 934111 (362 Liverpool Road), Part 5 DP 464 (378 Liverpool Road), lot 1 DP 945104 (an electricity substation), lots A and B DP 40053 and lot C and D DP 436744 (203-197 Norton Street). The site 2 The site extends from the southern side of Liverpool Road to the northern side of Norton Street. The major part of it is the RSL site, to which a substation site and several residential sites have been added. The total area is 11,919 m2. 3 The development on the northern side of Liverpool Road opposite the site is six-to seven-storeys high. To the east of the site along Liverpool Road are two houses and beyond those, three-storey buildings. To the west, between the site and Milton Street, is a vacant site. 4 To the south of the site, along Norton Street and the conservation area to the south, the character is quite different. There is a mixture of three-storey apartment buildings, terraces and detached houses on small allotments. A two-storey apartment building St Julian, at 195 Norton Street, is "embraced" by the development, ie between Buildings D and E. The proposal and its history 5 The applicant proposes to demolish the existing buildings on the site and to erect a development comprising five buildings. Building A is to contain a new club and 71 serviced apartments. Building B is to contain retail space and 98 serviced apartments. Building C is to contain 48 apartments. Building D is to contain four terrace houses. Building E is to contain ten apartments. The total number of parking spaces on the site is to be 431. 6 The applicant lodged the development application in December 2004 and amended it in June 2005, November 2005, twice in February 2006, May 2006 and July 2006, making the proposal before the Court the seventh version of the plans. In November 2005 the applicant lodged an appeal against deemed refusal. In July 2006 the council considered a report on the May 2006 version of the proposal and accepted the recommendation of its planning staff to refuse the application. The proposal before the Court is the July 2006 version. Relevant planning controls 7 Ashfield Local Environmental Plan 1985 (LEP 85) establishes two different zones for the site: 2(a) Residential, 3(a) General Business. The proposal is permissible in the 3(a) zone by virtue of being "mixed development", a land used that is defined in the LEP. 8 Development Control Plan 1 – Dwellings within Residential Zones (DCP 1) applies to the residentially zoned part of the site. However, no issues arose out this DCP. 9 Ashfield West Area Development Control Plan (the Ashfield West DCP) applies to that part of the site zoned General Business. This DCP establishes several development areas within the site and stipulates maximum ceiling heights and maximum building heights for them. The application complies with these. 10 State Environmental Planning Policy 1 (SEPP 1) under which the applicant has objected to the maximum FSR and minimum allotment size development standard. The council raises no issues in relation to varying the minimum allotment size; however, the variation of the FSR was the major issue in the case. 11 State Environmental Planning Policy 65 (SEPP 65) contains design principles for residential flat buildings, including context and internal amenity. The council raised the issue of context for Building A, and internal amenity at the below ground level apartments in Building C. The issues 12 The council submitted a Statement of Issues containing twelve issues of which it five. These issues can be summarised as follows: · The objectors' concerns · Are the bulk, scale and built form acceptable? · Are the impacts on privacy acceptable? · Is the overshadowing of the communal open space by Building C acceptable? · Is the breach of maximum FSR development standard justified? The objectors concerns 13 The Court heard the evidence of five objectors on site. Mr B Watson, who lives at 12 Hampden Street, said that the proposal was too dense and too big. It would change the character of Norton Street and exacerbate existing traffic and parking problems. Mr V Upatising, who lives at 205 Norton Street, agreed that the proposal was too dense and added that he was also concerned about damage from excavation. Ms K Totos, who lives at 44-48 Norton Street, on the other side of the lane on the site's western boundary, endorsed the comments on density and increase in traffic and added her concern about the wall on the western boundary. Mr N Vranas, who lives at 380-382 Liverpool Street, adjoining the site to the west, said that his concern was mainly traffic and circulation. Ms L Vassal, who lives in Unit 5 195 Norton Street, the apartment building, which the proposal "embraces", said that the proposal was too dense. Mr J Tindale, who lives in the same apartment building, endorsed Ms Vassall's views. 14 As regards the objectors' concern about traffic and parking, I note that the Court had appointed Mr G Pindar as the expert in traffic. Mr Pindar found no reason to refuse the application on the basis of traffic and parking. The council accepted Mr Pindar's report. As regards the objectors' concern about the scale of the proposal, that was the main issue during the hearing and is discussed below. The experts 15 The parties had selected Ms G Morrish, an architect, planner and urban designer as the Court-appointed expert. The applicant's expert on urban design was Professor P Droege, while the council's was Mr R Dickson, both architects and urban designers. The three experts prepared a joint statement dated 18 August 2006 that became Exhibit 13 in the proceedings. Bulk and scale 16 Two matters were at issue between Professor Droege, on the one hand, and Ms Morrish and Mr Dickson, on the other. First, Ms Morrish and Mr Dickson wanted the height of the eastern setback of Building A reduced in order to create a better transition towards the two-storey house to the east. Professor Droege did not see a need to reduce the height, since the neighbouring buildings were offset by 10m, with a 6m overlap. 17 In my opinion, Ms Morrish's suggestion has merit. Even if one disregards the scale of the existing houses to the east, the remaining development is four-storeys, so this is likely to be the scale of this section of Liverpool Road, should the 2(a) zoning be changed at some time in the future. Building A would integrate into the streetscape better if its height rose gradually from the east, starting from four storeys. 18 The second matter concerned a gap in the upper floors of Building C in order to break the length of the building and to allow the vista to terminate in the existing St Julian block of flats behind. Professor Droege argued against the suggestion, on the basis that the continuity of the building was more important than breaking the length. 19 I agree with Ms Morrish that building C is too long and places a visual block in the site. The ability to see through the building to St Julian would improve the design quality of the project. Impacts on privacy 20 All three experts agreed on reducing the width of the top floor eastern balcony to 3m, and converting the remaining portion to a planting bed. They also agreed on a different treatment of the eastern and western elevations of Building E. Apart from these two amendments, the experts agreed that the proposal's impact on privacy was acceptable. Sunlight in the communal open space 21 Ms Morrish and Mr Dickson suggested reducing the upper floors of Building C, so as to allow more sunlight in the communal open space just to its south. In the joint expert report Professor Droege did not take a position on this. During the hearing the applicant produced drawings illustrating that most of the communal open space would be in sunlight for two hours at mid-winter. In Ms Morrish's opinion, an added benefit of the change would be the reduction of the floor space and therefore the breach of the FSR. 22 I accept Ms Morrish's evidence, with which Mr Dickson agreed. Her suggestion achieves not only more sunlight, but sunlight around the middle of the day, when people enjoy it most. The fact that the change also reduces floor space, and thus reduces the breach of the FSR, is of benefit. Amenity of below ground floor apartments in building C 23 Ms Morrish and Mr Dickson said that the lower level of apartments CG07 and CG14 as well as the western bedroom of CG13 should be deleted. The reason is that these areas receive insufficient daylight. Ms Morrish explained her suggestion in a sketch called "Ground floor Building C – deletion of south-facing below-ground apartments (part of apartments)" that became part of Exhibit 15. Professor Droege agreed that the plans were deficient; however, he suggested that more daylight could be introduced by a re-assignment of rooms and by raising the whole building by 1m, while still keeping it under the maximum building height specified in the DCP. The applicant provided sketches to explain how this could be done. 24 I am reluctant to agree to a change that would actually raise the height of building C by 1m. The change would lead to other changes, such as in the roof pitch and the level of some of the parking floors. It is not known how the additional height would affect the overshadowing of the communal open space, though it is likely that it would increase it. I note that Ms Morrish raised her concerns in her June 2006 report, to which Revision G of the proposal was a response. The applicant's suggested method of dealing with the problem of poor amenity in these apartments should have been part of the Revision G plans that the council exhibited. 25 I accept Ms Morrish's evidence that the below ground section of Building C should be changed according to her sketch in Exhibit 15. Breach of FSR standard 26 Clause 17 of LEP 1985 establishes a maximum FSR for the 3(a) zone of 1:1. Clause 40 provides for a bonus of 0.5:1 for the residential part of a mixed-use development. The maximum permissible FSR for the proposal is therefore 1.5:1. 27 The FSR of Revision G of the proposal is 1.84:1, when calculated over that part of the site zoned 3(a). However, Ms Morrish agreed (and I understood that Mr Dickson also did) that it would be reasonable to include 362 Liverpool Road as part of the site, even though it is not zoned 3(a), because it fronts to Liverpool Street and would be perceived as part of the site. With the addition of 362 Liverpool Street, the proposal's FSR is 1`76:1. The adoption of the Morrish/Dickson amendments would lead to the loss of 1,100m2 of floor space. The FSR of an amended proposal over the site including 362 Liverpool Road would therefore be about 1.66:1. The question for the Court is therefore whether a variation of the FSR development standard in the order of 10% is reasonable in this case. 28 The applicant submitted an Objection under SEPP 1 to the FSR development standard. However, all the experts discussed the issue during the hearing and I rely on their evidence, as well as the written Objection (which was prepared in response to a much larger breach), for my conclusion. Professor Droege's various statements indicated that he did not think that FSR was a useful planning control for this proposal. This is not helpful to my decision since I am required to assume that the development standard is there for a purpose. 29 Ms Morrish wrote in both her reports that she could not support a variation of the FSR standard. However, she wrote this on the basis of a 25%, rather than a 10% breach and in relation to a proposal that had numerous adverse impacts. When she was asked at the end of the hearing whether, if the proposal were amended in response to all her suggestions, she would consider the breach of the FSR standard fatal to the application, she answered in the negative. While Mr Dickson was more equivocal, his opinion did not appear to be very different. 30 In Winten Property v North Sydney Council 130 LGRA 79, Lloyd J set down five questions that should be considered in the assessment of an Objection under SEPP 1. Since everyone agreed that the FSR was a development standard, I turn to the second question, namely what the objectives of the standard are. The LEP does not contain objectives for the standard. DCP 1 contains objectives for density control, but these apply only to residential areas, so they do not seem to me to be relevant. It is therefore necessary to assume underlying objectives. The usual objectives of FSR development standards are to control bulk and scale and to provide a level of certainty for development. 31 I understood both Ms Morrish and Mr Dickson to be saying that, subject to the changes they suggested, the proposal's bulk and scale was acceptable. Neither of them suggested that an additional offensive part of any of the four buildings within the commercial zone should be deleted. As regards certainty of development, a variation in the order of 10% does not change development potential to an extent as to destroy the concept of certainty. I conclude from the above that the proposal (when changed according to the Morrish/Dickson suggestions) is consistent with the underlying objectives of the FSR standards. 32 Given the above finding, it would be unnecessary to insist on strict compliance with the FSR standard. A development that strictly complies with the standard would also be unnecessary. The Objection (ie the written Objection amplified by the evidence during the hearing) is well founded. The breach of the FSR standard is not a reason for refusal. Amendments required 33 In my opinion, the proposal before the Court is not acceptable, though with the implementation of the Morrish/Dickson amendments, it would be become worthy of approval. The following four amendments (on which there was no agreement) are required: 1. Building A, eastern setback: delete 4m from eastern end at level 4, as described in sketch in Exhibit 15. 2. Building C, central slot: delete parts of levels 2 and 3, as described in two sketches in Exhibit 15. 3. Building C, below ground apartments: delete the lower level of CG07 and CG014, and the western bedroom of CG13, as described in sketch in Exhibit 15. 4. Building C, reduction of overshadowing communal open space: delete parts of levels 3 and 4, as indicated in sketch in Exhibit 15. 34 The following five amendments (which all the experts supported) are also required: 5. Change the west and east elevation of Building E as indicated in sketch "Surveillance Building E" in Exhibit E. 6. Building A, reduce eastern roof terrace to 3m in width, with the remaining area becoming a planting box. 7. Building A, in front of shops: delete planters as indicated in drawing in Exhibit E. 8. Vehicular crossing to Liverpool Road: reduce width of crossing to 11m as indicated in drawing in Exhibit E. 9. Submit schedule of finishes agreed to by all experts. 35 At a mention on 31 August the applicant accepted to undertake these changes as well as to pay the Ms Morrish's and the council's additional costs arising after 31 August 2006. As a consequence the Court gave the applicant leave to prepare amended drawings complying with the Court's decision. 36 At the hearing on 1 December 2006 the applicant tendered amended drawings. The council tendered a report by Ms Morrish (Exhibit 19) stating that the amended drawings either complied with the Court's decision or achieved the same objectives. The parties agreed on conditions of consent. The applicant agreed to pay the council's legal costs of $9,741.64 (nine thousand seven hundred and forty-one dollars and sixty-four cents). There is therefore nothing in the way of the Court's approving the proposal. Orders 1. The appeal is upheld. 2. Development application to demolish the existing buildings and erect a development containing a club, shops, serviced apartments, apartments and dwelling houses with associated parking on lot 1 DP 703400 (346-376 Liverpool Road and 187-193 Norton Street), lot 1 DP 934111 (362 Liverpool Road), Part 5 DP 464 (378 Liverpool Road), lot 1 DP 945104 (an electricity substation), lots A and B DP 40053 and lot C and D DP 436744 (203-197 Norton Street) is determined by the grant of consent. 3. The exhibits are returned except Exhibits 19, 20 and N. _____________________ 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. 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