Land and Environment Court of New South Wales CITATION : X.Pace Design Group v Woollahra Municipal Council [2009] NSWLEC 1268 APPLICANT X.Pace Design Group Pty Ltd PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10240 of 2009 CORAM: Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- demolition of two existing dwelling houses and ancillary structures and the construction of a three-storey residential flat building - impact on desired future character - SEPP 1 objection to floor space ratio - breach of 2-storey control LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 DATES OF HEARING: 31 July 2009, 3 August 2009 DATE OF JUDGMENT: 12 August 2009 APPLICANT Ms S Duggan, barrister SOLICITORS Spiegal & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr N Howie, solicitor RESPONDENT Willshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 12 August 2009 10240 of 2009 X.Pace Design Group Pty Ltd v Woollahra Municipal Council JUDGMENT 1 COMMISSIONER: This is an appeal the refusal of Application DA 565/2008/1 by Woollahra Municipal Council (the council) for the demolition of two existing dwelling houses and ancillary structures and the construction of a three-storey residential flat building containing six units, 14 car basement car parking spaces, a swimming pool, landscaping works and the strata subdivision of the new development at 27 and 29 Wilberforce Avenue Rose Bay (the site). 2 The contentions raised by the council relate to be breach of the floor space ratio (FSR) and storey requirements and the consequent impacts on the desired future character and streetscape. A number of local residents provided evidence on site and raised additional issues relating to the bulk and scale of the building when viewed from their properties and the loss of aural and visual privacy from windows and balconies of the proposed development. The site 3 The site consists of two separate lots and is rectangular in shape with a Wilberforce Avenue frontage of 27.43 m and a depth of 42.67 m, giving a total site area of 1170.4 sq m. It is relatively flat with a minor cross fall from north-west to south-east of around 0.2 m. 4 The locality is characterised by a mix of older style dwelling houses, some residential flat buildings and commercial development at either end of Wilberforce Avenue. Relevant planning controls 5 The site is located within the zone Residential 2(b) under Woollahra Local Environmental Plan 1995 (LEP 1995). The proposed development is permissible with consent within this zone. The zone provides the following relevant details: 2. Description of the zone The Residential "B" Zone applies to areas characterised by existing medium density residential flat buildings and areas where potential has been identified for increased medium density residential development. Floor space and height controls, contained in Part 3, set the maximum permissible density and building heights for new development. Site area and frontage controls, also contained in Part 3, specify minimum site requirements for new development. 3. Objectives of the zone The objectives are: (a) to provide for areas of medium and high density residential development in appropriate locations, (b) to encourage a diversity of dwelling types and tenure, (c) to allow non-residential development of low intensity which is compatible with the residential character and amenity of the locality, (d) to improve access to and along the Sydney Harbour foreshore where opportunities arise, and (e) to protect the environmental attributes of the foreshore lands. 6 LEP 1995 provides for a FSR of 0.7 5:1 (cl 11(1)). The council calculates the FSR at 0.908:1. The applicant relies on the visual FSR of 0.86:1. As the proposed development does not satisfy the FSR development standard, an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) was provided by the applicant to show that strict compliance with the development standard was unreasonable and unnecessary in the circumstances of this case. LEP 1995 provides objectives for the FSR standard (cl 11AA), a maximum building height of 9.5 m (cl 12(1)) and objectives for the maximum building height (cl 12AA). There was agreement that the proposed development satisfies the maximum building height requirement. 7 Schedule 1 provides definitions. The relevant definition is: Storey means any separate level within a building (not including levels below in existing ground level provided for car parking or storage, or both, that protrude less than 1.2 m above existing ground level, or an attic level), where the number of storeys that a building contains is the maximum number of storeys of a building which may be intersected by the same vertical line, not being a line which passes through any wall of the building. 8 Woollahra Residential Development Control Plan 2003 (DCP 2003) applies. DCP 2003 provides objectives (Part 1.3), Precinct Controls (Part 1.5.2) and General Controls (Part 1.5.3). DCP 2003 provides requirements for the Rose Bay Precinct (Part 4.9) including the Desired Future Character Objectives (O 4.1.1 to O 4.9.7) and the Desired Future Character Performance Criteria (C 4.9.1 to C 4.9.5). 9 The Desired Future Character Objectives for the Rose Bay Precinct are: O 4.9.1 To encourage development scale in relation to the function and role of the streets they address: larger development scales on the major streets (Old South Head Road and New South Head Road adjacent to the commercial centre) and a range of housing types on the minor streets; O 4.9.2 To reinforce a consistent building scale across both sides of the street; O 4.9.3 To ensure that new development reinforces the precincts topography; O 4.9.4 To maintain the evolution of residential building styles through the introduction of well designed contemporary buildings.; O 4.9.5 To differentiate between the development pattern of the Rose Bay commercial centre and the density of the adjacent residential areas; O 4.9.6 To ensure that residential development addresses the street; O 4.9.7 To protect important views from the public spaces of the precinct to the harbour and to the surrounding districts; 10 The site falls within Rose Bay Precinct Street Section (2) (Part C 4.9.7). This section provides quantitative standards and qualitative requirements. Relevantly, development within this part of the Rose Bay Precinct is to have a maximum building height of 2-storeys. There was agreement that the proposed development does not satisfy the 2-storey requirement. Where the landform of a site falls more than 2 m from the street to the rear of a property an additional basement storey may be permitted as long as all other DCP 2003 controls are met (Part C 4.9.7.7). The site does not fall within this concession because the site is generally flat. The diagrams included in Part C 4.9.7 indicate a two-storey building (on the site with a fall less than 2 m) with that area between the upper level of the second storey and the 9.5 m height limit shown as "roof space". 11 Additional requirements in DCP 2030 relate to Acoustic and Visual Privacy (Part 5.8) and Definitions (Part 6). DCP 2003 adopts the same definition for storey as contained in LEP 1995. The FSR non-compliance The assessment framework 12 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are asked. The first question asks whether the planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. Clause 11AA provides the following objectives: (a) to set the maximum density for new development, (b) to control building density, bulk and scale in all residential and commercial localities in the area in order to achieve the desired future character objectives of those localities, (c) to minimise adverse environmental effect on the use or enjoyment, or both, of adjoining properties, and (d) to relate new development to the existing character of surrounding built and natural environment as viewed from the streetscape, the harbour or any other panoramic viewing point. Note. The maximum permissible floor space ratio is not "as of right". To achieve the maximum permissible floor space ratio, development must satisfy other relevant controls applicable to the land concerned. 13 The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state: 3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 14 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state: 5.The objects of this Act are: (a) to encourage – (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and coordination of the orderly and economic use and development of land . 15 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded. The SEPP 1 objection 16 Mr Lindsay Fletcher, the applicant's town planner, addressed the SEPP 1 objection. Mr Fletcher adopts the approach in Winten and the objectives in cl 11AA. While Mr Fletcher addresses objective (a), I am not satisfied that it is necessary relevant to the consideration of the SEPP 1 objection. The objective is satisfied through the provision of a maximum FSR in cl 11(1). 17 For objective (b), Mr Fletcher states that the character of the Rose Bay Precinct is increasingly one of contemporary style residential flat buildings of similar height, bulk and scale, although differing in architectural treatment and detail. In his opinion, the proposed building has been designed to respond to and complement this emerging character of the locality. Mr Fletcher identifies recent multi-unit housing the locality (23, 39-41, 40-42 and 44-46 Wilberforce Ave) that exceeds the 0.75: 1 FSR requirement. These developments have an FSR ranging between 0.81:1 and 1.01:1 and an average of 0.92:1. Further, the proposed development satisfies the 9.5 m maximum building height requirement in LEP 1995 and accordingly the proposal is considered to be compatible with the scale and character of development in the vicinity of the site. 18 For objective (c), Mr Fletcher states that the proposed development has little if any impact on the enjoyment and use of adjoining properties in terms of privacy, overshadowing or other amenity impacts. The building is orientated to provide balconies to the front and rear so primary views are orientated away from the adjacent properties. When combined with the large side and rear boundary setbacks and proposed landscaping, privacy impacts are adequately addressed. Notwithstanding the exceedance of the FSR development standard, the shadows cast by the proposed development are acceptable and easily satisfy the requirements of DCP 2003. 19 For objective (d), Mr Fletcher states that the site is not visible from the harbour or any panoramic viewing point. As the proposed development relates well to the existing building environment, the scale of development in the immediate context of the site and the emerging character of the locality, the development satisfies this objective. 20 For these reasons, the SEPP 1 objection is well founded and strict compliance with the FSR development standard is unreasonable and unnecessary in the circumstances of this case. The council's response to the SEPP 1 objection 21 Ms Sue Francis, a town planner, provided evidence for the council. While accepting that strict compliance with the 0.75:1 FSR development standard is not necessarily essential, Ms Francis limits any exceedance to situations where the impact on the amenity of neighbouring properties and the impact of the proposal on the desired future character of the streetscape are both acceptable. Ms Francis concludes that the proposed development does not satisfy these criteria to allow a departure from the FSR standard, in this case. 22 In relation to objective (b), Ms Francis states that the development is contrary to the specific intentions of the relevant planning controls and would likely, due to the location of the site "central" to the area, prevent the achievement of the desired future character on any other sites. This approval would be seen as a precedent to allow further non-compliant proposals, all but abandoning those controls, which would render the zoning and standards irrelevant. The clear 3-storey presentation to Wilberforce Street was a significant concern of Ms Francis as she stated that some considerable weight should be given to the form of development contemplated by the introduction of Amendment No 46 to LEP 1995 on 27 February 2004. Amendment 46 reduced in the FSR controls from 0.875:1 to 0.75:1 on the site and in the immediate area. The clear intention of the council through Amendment 46 was to confirm that the form of residential flat development, previously permissible on the site and in the immediate area, was no longer appropriate. The corresponding amendments to DCP 2003 to provide a maximum 2-storey height limit further supports the intention of changing the form of development considered appropriate for the area. The DCP 2003 amendments relating to the 2-storey limit, also extended beyond the area identified by Amendment 46. For these reasons Ms Francis concludes that the proposed development is inconsistent with objective (b). 23 In terms of the impact on the amenity of neighbouring properties (objective (c)), Ms Francis agrees that in relation to overshadowing and the side setbacks, the separation distances provided are adequate to ensure an acceptable impact. In accepting that recent amendments have been made to reduce the height of the building and further setback the third level, and while these amendments have improved the relationship with the properties in Albermale Ave, Ms Francis does not accept that these amendments are sufficient to overcome her concerns. As I understand, Ms Francis still had some concerns over the third level when viewed from the properties in Albermale Ave despite further amendments by the applicant during the hearing although her evidence indicated that further amendments could be made to generally address the concerns. 24 Ms Francis maintained her concerns regarding the impact on the desired future character of the area were as relevant for objective (d) and the existing character of surrounding built and natural environment as viewed from the streetscape. I did not understand Ms Francis to raise any particular concerns with the impact of the development from the harbour or any other panoramic viewing point. Findings – SEPP 1 objection 25 The SEPP 1 objection seeks to establish that compliance with the FSR development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. While there was disagreement over the FSR, the difference is not critical to the assessment of the SEPP 1 objection. 26 Objective (b) and (d) require the form of the proposed development to be tested against the desired character objectives for the Rose Bay Precinct and Rose Bay Precinct Street Section (2) precinct and the existing character of surrounding built environment, as viewed from the streetscape. DCP 2003 largely provides the requirements for this assessment although the description of the zone and the objectives of the zone provide some guidance. 27 The desired future character objectives for each precinct describe the outcomes that are to be achieved through development within the precinct. For a development to be acceptable, it needs to demonstrate that it has fulfilled the relevant objectives. The performance criteria describe specific ways in which the desired future character objectives can be met. In particular, the performance criteria for each precinct require developments to preserve or enhance the relevant character elements for the precinct. There are quantitative and qualitative requirements to consider. 28 The building contemplated by the planning controls and presumably satisfy the desired future character for the Rose Bay Precinct Street Section (2) area should have the following main characteristics: o be medium or high-density depending on its location (zone objectives (a) and (b) - LEP 1995, o have a maximum height of 9.5 m (cl 12 – LEP 1995), o be of a scale that relates to its function and role of the street (objective O 4.9.1), o be of a scale and character in keeping with the desired future character of the locality (objective O 5.1.1), o be a well-designed contemporary building (objective O 4.9.4), o address the street (objective O 4.9.6), o provide a front setback that is consistent with adjoining buildings (Part C 4.9.7.3), o provide a rear setback that is equivalent to 25% of the average site length (diagram Part C 4.9.7), o provide appropriate side setbacks (Part C 4.9.4), o provide deep soil landscape at the frontage (Part C 4.9.7.4), o provide an articulated building form (Part C 4.9.7.5), o have a maximum height of two storeys except where there is a fall greater than 2 m (Part C 4.9.7.7), o provide roof space between the two-storey limit and the 9.5 m maximum height limit (diagram Part C 4.9.7). 29 There was no dispute that the proposed development satisfied a large number of the requirements from LEP 1995 and DCP 2003. The important departures, however relate to the FSR requirement and the 2-storey limit. The variations to these requirements led to the significant difference in opinion of Mr Fletcher and Ms Francis and centre on the 3-storey form of the building (and the consequent increase in floor space) and its relationship with the desired future character of the area as set out in DCP 2003. 30 Mr Fletcher places some emphasis on his assessment of the existing character of surrounding built environment to support his position that the proposed development is consistent with the desired future character of the area. He took the view that the cue for any future development (and the way it addresses the desired future character of the area) should be from the length of Wilberforce Avenue and include the existing forms of residential flat buildings at 9, 23, 39-41, 40-42 and 44-46 Wilberforce Avenue. These buildings are 3 storeys in height and present as a 3-storey building to Wilberforce Avenue. Each development has an FSR in excess of 0.75:1 and closer to the FSR of the proposed development. 31 Ms Francis takes the view that the appropriate cue for the assessment of the existing character of the area in Wilberforce Avenue and consequently the desired future character of the area, is between the commercial development at Old South Head Road and Spencer Lane and Rose Bay Primary School. This area contains predominantly small residential cottages or duplex housing forms but with residential flat buildings at the extremities of her designated area (23, 39-41, and 44-46 Wilberforce Avenue). In her opinion, any new buildings should have a two-storey presentation to Wilberforce Avenue consistent with the requirements of DCP 2003 given the different form of development contemplated by Amendment No 46. 32 With the benefit of the site view and an understanding of the relevant planning controls, I am satisfied that the general approach adopted by Ms Francis is the correct one. Dealing first with the streetscape, there was no dispute that the proposed development presents as a three-storey building to Wilberforce Avenue. This is in clear conflict with the two-storey height requirement in Part C 4.9.7.7 of DCP 2003. In my view, the existing residential flat buildings in Wilberforce Avenue provide no warrant for the proposed development for two main reasons. 33 First, the existing developments relied upon by Mr Fletcher were approved prior to Amendment 46 and the corresponding amendments to DCP 2003. Prior to Amendment 46, the FSR requirement in the LEP 1995 for the western end of Wilberforce Avenue (beyond Spencer Lane and Rose Bay Primary School) was 0.875:1. There was no storey requirement in either LEP 1995 or DCP 2003. All but one of the properties (40-42 Wilberforce Avenue) relied upon by Mr Fletcher were located in this area. The relevant development requirements for these properties were an FSR role of 0.875:1 and no limit on the number of storeys. Given the existing controls it is not surprising that the developments took the form that they did. With a change to be planning controls, it does not follow that this form of development should be maintained. 34 Second, and even if the streetscape assessment is based on the complete length of a Wilberforce Avenue as used by Mr Fletcher, but excluding the commercial developments at either end of Wilberforce Avenue, then I still accept that the existing 3-storey residential flat buildings still provide no warrant for the proposed development. Wilberforce Avenue still maintains a low-density residential character. Single dwellings and duplex developments predominate in the street. Redevelopment of this area for higher density residential flat buildings currently occupies only some 8 lots out of a total of some 46 lots. Mr Fletcher's approach would have greater force only if the vast majority of Wilberforce Avenue was developed at the densities prior to Amendment 46. This is however, not the case and I accept the evidence of Ms Francis that the approval of this application is likely to lead to further applications for 3-storey residential flat buildings with floor space beyond that provided for in LEP 1995. In my opinion, the issue of precedence is a valid consideration in this case. 35 The desired future character objectives for the Rose Bay Precinct are general in nature and do not address the finer details found in the Rose Bay Precinct Street Section (2). Based on the outcomes that are to be achieved for development within the precinct, I do not accept that the development has fulfilled the relevant objectives. While it is open to address the objectives through performance criteria that are different to those in DCP 2003, the FSR and storey controls are, in my view, absolutely fundamental to preserving and enhancing the relevant character elements for the Rose Bay Precinct Street Section (2). 36 Objective(c) addresses the amenity impacts on adjoining properties. I agree with the conclusions of Mr Fletcher and Ms Francis that the proposed development raises no issues in relation to overshadowing of adjoining properties. Similarly, I accept that visual and aural privacy issues are adequately addressed through the design or could be addressed through additional conditions to provide some further amendments to the side windows. 37 In my view, the issues associated with bulk and scale of a 3-storey building create unacceptable amenity impacts based on what is the form of development anticipated by LEP 1995 and DCP 2003. The 3-storey walls facing the adjoining properties in Wilberforce Avenue are unacceptable in terms of visual bulk. While I accept that attempts have been made to reduce the extent of the three-storey walls in these elevations, the effect is still unacceptable even though there is compliance with the side setback requirements. A 2-storey elevation, at the same side setback, would clearly create a less imposing building and a form consistent with that anticipated by the planning controls. 38 I am generally satisfied that the visual impact of the building from Albermale Avenue is acceptable. Considerable attempts have been made to reduce the visual impact of the building from this location through the substantial setback of the accommodation on the third level and the use of 39 planters and restricted areas to minimise overlooking. While concerns were still raised over the issue of privacy, I am satisfied that the generous rear set back is sufficient to minimise privacy impacts. I am also satisfied that any concerns over lighting on the third level is not a sufficient reason to refuse the development application or seek further amendments. Consistent with the evidence of Ms Francis and the requirements of LEP 1995 and DCP 2003, the roof space can be used for attic accommodation so the potential exists for some form of residential occupation of the third level of a building on the site. Overall, the proposed development provides a reasonable transition between two residential zones. 40 I find that the proposed development does not satisfy objectives (b), (c) and (d) of the FSR development standard. It follows that to allow the variation to the FSR development standard would not be consistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. The appeal must fail for this reason. 41 Consequently, compliance with the development standard is not unreasonable or unnecessary in the circumstances of case and the objection is not well founded. Orders 42 The Orders of the Court are: 1. The appeal is dismissed. 2. Application DA 565/2008/1 for the demolition of two existing dwelling houses and ancillary structures and the construction of a three-storey residential flat building containing six units, 14 car basement car parking spaces, a swimming pool, landscaping works and the strata subdivision of the new development at 27 and 29 Wilberforce Avenue Rose Bay is refused. 3. The exhibits are returned. ____________ G T Brown Commissioner of the Court 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.