Land and Environment Court of New South Wales CITATION : CSA Architects Pty Limited v Waverley Council [2007] NSWLEC 575 APPLICANT CSA Architects Pty Limited PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10479 of 2007 CORAM: Tuor C Development Application :- two storey building for retail/commercial use with basement stack parking KEY ISSUES: SEPP 1 objection to floor space ratio standard underlying purpose of the standard whether impact of bulk and scale, overshadowing and privacy acceptable. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996. State Environmental Planning Policy No. 1 - Development Standards Veloshin v Randwick Council 2007 NSWLEC 428; CASES CITED: Pafburn v North Sydney Council 2005 NSWLEC 444; Winton Property Group Limited v North Sydney Council 2001 NSWLEC 46; Hooker Corporation Pty Limited v Hornsby Shire Council DATES OF HEARING: 28/08/2007 EX TEMPORE JUDGMENT DATE : 29 August 2007 APPLICANT Mr V. Conomos, solicitor of Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr S. Patterson, solicitor of Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 29 August 2007 10479 of 2007 CSA Architects Pty Limited v Waverley Council JUDGMENT 1 This is an appeal against the deemed refusal by Waverley Council (council) of a development application (173/2007) to demolish an existing building and construct a two storey building with retail on the ground level and commercial at first level, and basement stack parking for 11 cars at 235-239 Bronte Road, Waverley. The site and its context 2 The site is located on the south-western side of Bronte Road in the Charing Cross shopping centre. It has an area of about 516 square metres with a frontage to Bronte Road of about 17.5 metres. The north-east corner of the site is developed with a single storey brick building. The remainder of the site is occupied by a single storey corrugated iron building with car access off Bronte Road. 3 Adjoining the site to the north is a single storey building of similar style, known as the Reece Building (231-233 Bronte Road). To the south is a two storey building with shops at ground level and dwellings above (245 Bronte Road). To the rear of the site are two residential flat buildings that are both two storeys (102 and 102 Carrington Road). 4 102 Carrington Road is built to the boundary and adjoins the southern part of the existing building on the site. It has windows and terraces orientated to the north. 100 Carrington Road is set back about 5 metres from the common boundary with the site. The east façade is blank and the building is orientated to the north and south. 5 Surrounding development along the Charing Cross shopping strip is predominantly two storey Victorian commercial terraces, which typically comprise ground floor shops with dwellings above. There are also single and three storey Victorian terraces and more recent mixed use developments in the shopping strip. Planning Framework 6 The site is zoned 3(c) Business Neighbourhood under Waverley Local Environmental Plan 1996 (LEP 1996). 'Commercial uses required to serve the daily needs of the adjoining neighbourhood' and 'shops' are permissible with consent. Mixed development is also permissible within the zone but is defined under LEP 1996 as comprising a residential use within the same building as any non-residential use. 7 The objectives of the 3(c) zone are: (a) to provide a range of shops and low intensity commercial uses that serve the daily needs of adjacent residential neighbourhoods, and (b) to encourage the mixing of residential development with those uses. 8 Clause 10(2) of LEP 1996 provides: The council shall not grant consent to the carrying out of any development within the zone unless the council is satisfied that the development meets one or more of the objectives of the zone. 9 The parties agreed that the proposal did not meet zone objective (b) but disagreed whether it met objective (a). 10 Clause 32 of LEP 1996 provides: In granting consent to the carrying out of development on land adjoining land in another zone, the council must have regard to the objectives of the adjoining zone and to the measures to reduce the adverse impact of development on land within the adjoining zone. 11 Land to the rear of the site is zoned 2(b) Residential - Medium Density. The objectives of the zone are: (a) to allow a variety of housing forms, including dwelling houses, residential flat buildings, townhouses and boarding houses, (b) to maintain and improve the amenity and existing characteristics of the locality, and (c) to allow certain non-residential uses of low intensity which are compatible with the character and scale of medium density attached housing. 12 Clause 27 of LEP 1996 permits a maximum floor space ratio (FSR) of 0.5:1. If residential accommodation is provided as part of a mixed development, a maximum FSR of 1:1 is permitted. The proposal has an FSR of about 1.44:1 above ground and about 1.475:1 including the basement component. The existing building on the site has an FSR of about 1:1. 13 Clause 28 of LEP 1996 permits a maximum height of 9 metres. A small part of the building exceeds the height control by about 0.5 to 1 metre. 14 The applicant has submitted objections under State Environmental Planning Policy No 1 – Development Standards (SEPP 1) to both the FSR and height controls. 15 The site is within the Charing Cross Conservation Area. Clause 45 of LEP 1996 requires a consideration of whether the proposal would adversely affect the significance of the conservation area. 16 The site adjoins a heritage item (245-277 Bronte Road) and is in the vicinity of other items. Clause 49 of LEP 1996 requires a consideration of the likely effect on the significance of the heritage items. 17 Waverley Development Control Plan 2006 (DCP 2006) is also relevant. Part H(2) of DCP 2006 includes specific controls for the Charing Cross Conservation Area. Clause 6.16(f) identifies 231-235 Bronte Road as having potential for site upgrading or in-fill development. The inventory in annexure H(2) of DCP 2006 details means by which façade improvements may be achieved. The inventory identifies 231 Bronte Road as having potential to add a second floor as appropriate streetscape in-fill. Although there are some discrepancies in the numbering, the references appear to refer to the site and the adjoining Reece building. 18 Part I of DCP 2006 refers to Land Use and Transport. DCP 2006 specifies a requirement for 16 cars spaces but recognises that reduced rates may be considered within the Charing Cross Conservation Area. Stack parking is only permitted for residential development and a loading dock is required for shops with more than 400 square metres of gross floor area. Council did not raise parking as an issue, but no assessment was provided to the Court, which justified the non-compliance of the car parking with the requirements of DCP 2006. The memo from council's traffic manager did not address this issue. The issues 19 The Statement of Facts and Contentions included 10 issues. Some of these were resolved by amended plans, proposed conditions or expert evidence. In particular, the issues relating to the impact on the conservation area and heritage items in the vicinity were addressed by the heritage experts, Mr S Davies for the applicant and Mr C Brady for the council. These experts prepared a joint statement and agreed that the external streetscape appearance of the amended plans was acceptable. Council did not press the issue but it remained the main concern of the residents who gave evidence on site. 20 The key issue in dispute between the parties was whether the SEPP 1 objection in relation to the FSR control in LEP 1996 was well founded. The evidence 21 The Court visited the site and heard evidence from a number of residents. Their concerns are summarised in exhibits 6, 7 and J. Their main concern related to the removal of the existing building, which they considered to be a contributory item in the streetscape, and its replacement with a building that would make less contribution to the conservation area. The residents were also concerned about the excavation for basement car parking and the safety and amenity impacts of cars entering and leaving the site. 22 Ms P Angus-Levin, the owner and chairman of the Owners Corporation of 100 Carrington Road, raised concern about the FSR of the proposal and its impacts on her property of overlooking, overshadowing and bulk. She agreed that the conditions proposed by the applicant in relation to privacy would alleviate her concerns in this regard. 23 The Court heard expert planning evidence from Mr A Betros, for the applicant, and Mr N Kennan, for the council. The key difference between these experts can be summarised as being whether the proposal met the underlying objective for the FSR control. LEP 1996 does not state the objective of the standard. 24 Mr Betros considered the underlying objective of the FSR control was to achieve the aims and objectives of the Charing Cross precinct as stated in DCP 2006. He stated that: the proposed FSR is considered to satisfy the aims and objectives as the resultant development enhances the existing streetscape as evidenced by the position of agreement between council's and the applicant's urban design and heritage experts. The 2-storey building associated with the proposed FSR sits comfortably in the historic streetscape and adopts façade features and proportions which respect and reflect the characteristics of the precinct, as desired in the aims and objectives. The bulk and scale of the building are considered to be consistent with the desired built form due to compliance with setbacks, height and contemplated shadow impacts. 25 Further, Mr Betros considered compliance with the standard to be unreasonable and unnecessary as the proposal: · achieves the streetscape objectives of the FSR control; · promotes the orderly and economic development of land by providing commercial and retail development with an acceptable impact on adjoining properties; · achieves a better urban design outcome than a complying development which would result in an inefficient use of the site with a building out of character with the area; · meets the objectives for the zone by providing retail and commercial uses. 26 In oral evidence, Mr Betros stated that he considered the 0.5:1 or the 1:1 FSR control to be unrealistic and unreasonable for not only this site but for other sites in the area, as it unnecessarily restricts the development potential of these sites and was below the FSR of existing development in the Charing Cross strip. 27 Mr Betros referred to a survey of two to three storey buildings in the street which indicated the average FSR to be about 1.44:1. However, under cross-examination he noted that the average included one site with an FSR of 2.22:1 and excluded another with an FSR of 0.7:1. He considered that the most frequently occurring FSR was in the order of 1.2:1 to 1.3:1, and that single storey development was not included in the survey. 28 Mr Betros recognised that a complying development would have less amenity impact on adjoining properties. In particular the overshadowing impact on the adjoining property to the south and west would be reduced by development at both 0.5:1 or 1:1 FSR. However, Mr Betros considered the impacts of the proposal to be acceptable as they were consistent with the impacts that resulted from the existing building and met the DCP 2006 minimum standard of two hour solar access. 29 Further, Mr Betros considered acceptable privacy could be achieved by screening and planting and that the bulk of the building and its relationship to the adjoining residential zone was acceptable as it was set back 3 metres at ground level and 1.5 metres at first floor level, which was an improvement over the existing building. Further he considered the outdoor area the blank eastern façade of 100 Carrington Road meant that the impacts of the proposal would be minimal. In relation to 102 Carrington Road and 245 Bronte Road, Mr Boutros considered the proposal to be an improvement over what currently existed. The proposal is consistent with the existing context of the area where buildings have no front and side setbacks and minimal rear setbacks with little landscaping. The absence of setbacks and landscaping controls in DCP 2006, in his opinion, indicated that the proposal was consistent with the desired future character of the area. 30 Mr Kennan considered the purpose of the FSR standard as stated for residential development in DCP 2006 could equally apply to the commercial retail proposal. The objective being: To control the size, bulk and scale of development to reflect the existing and desired future character of the area. 31 Mr Kennan stated that "by meeting the objective, the development will respect the amenity of residents of the adjoining development". He accepted that the size, bulk and scale of the development was acceptable in the Bronte Road streetscape but did not consider that its relationship to the adjoining residential development to be acceptable or that an appropriate transition between the commercial and residential zones had been achieved. 32 Mr Kennan did not consider that the impacts of the proposal were consistent with the impacts that may reasonably be expected under the controls. In his opinion the exceedence of the FSR control by a factor of 2.88 resulted in an impact of overshadowing and sense of enclosure due to bulk and scale beyond that anticipated by the controls. A lesser FSR would reduce these impacts. 33 Mr Kennan referred to the principles of the Senior Commissioner in Veloshin v Randwick Council 2007 NSWLEC 428 to support his opinion. Mr Betros also referred to these principles but, as stated above, drew different conclusions. 34 Mr Kennan considered the impacts arising from the proposal do not result from a necessary or reasonable development nor meet the principles expressed by the Senior Commissioner in Pafburn v North Sydney Council 2005 NSWLEC 444 in dealing with impacts of development on adjoining properties. Mr Kennon stated: …..that a skilled designer would be able to avoid these impacts by complying with the planning regime for the site…. Having regard to the above, and indeed site coverage and FSR of the existing development of the site, I am of the opinion that there is a distinct possibility that a skilled designer could provide a development which addresses Bronte Road in the manner envisaged by Council's controls whereby a two storey façade could be developed with a single storey development further into the site. Such a development may necessarily exceed the 0.5:1 FSR development standard. However, a quality design which limits the impact to the adjoining residential development to that which might occur from a compliant development could be seen as one where a SEPP 1 objection would be well founded. Findings 35 The appropriate manner for dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winton Property Group Limited v North Sydney Council 2001 NSWLEC 46 at para 46. In Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986) Cripps J addresses the approach to be taken when considering a SEPP 1 objection where he states: …it is now established that it is not sufficient merely to point to what is described as absence of environmental harm to found an objection. Furthermore, the objection is not advanced in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose. …It is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part 3 of the Environmental Planning and Assessment Act. 36 Mr Betros, in his oral evidence, clearly did not accept that the FSR control was appropriate or had a reasonable planning purpose as he considered it unrealistically restricted development for not only this but other sites in the area. 37 It is clear that the role of the Court is not to question the standard but to endeavour to understand its underlying objective and to assess whether this is met by the proposed development. 38 The underlying purpose of an FSR standard is generally accepted as being to control the bulk and scale of a development but also to limit the intensity of development. 39 The intensity of development is an important objective of the standard when considered together with the objectives of the zone which seek to achieve a range of shops and low intensity commercial uses. The provision of floor space in excess of the standard clearly increases the intensity of uses on the site and generates additional demands for parking ect, which need to be met by the development. 40 In relation to bulk and scale, Mr Betros considered that this primarily related to the streetscape context. It is agreed by the heritage experts that the existing building, while a contributory element in the streetscape, could be removed provided an acceptable in-fill building is provided. 41 There was general agreement from the experts that the proposal was of appropriate bulk and scale within the Bronte Road streetscape, although the residents raised concerns about the removal of the existing building and its replacement. In the absence of any expert evidence to the contrary, I accept the opinion of the heritage experts regarding the removal of the existing building and its compatibility with the streetscape. However, for the reasons set out in the following paragraphs, I am not satisfied that the proposed has an acceptable impact on buildings to its rear in the adjoining residential area. This was the key difference of opinion between Mr Betros and Mr Kennan. 42 With the benefit of a site inspection I accept Mr Kennan's evidence. The proposal will result in amenity impacts which would not result from a more complying development. The impacts cannot be justified on the basis of the impacts of the existing building on the site or the context of existing development. 43 While the planning controls obviously seek to maintain the streetscape character of the Charing Cross Conservation Area, I do not accept that the character at the rear of the properties is sought to be emulated by the planning controls. The current relationship between the site and 100 and 102 Carrington Road is clearly unsatisfactory. The proposal will improve this relationship but not to the extent envisaged by the planning controls. 44 A proposal with a lesser FSR would clearly allow a greater setback and improve the relationship of the retail/commercial development with the adjoining residential development. 45 While the outdoor area of 100 Carrington Road is clearly under-utilised at present, the area could be improved and provide considerable amenity for the residents. The amenity of the outdoor terraces of 102 Carrington Road would be greatly improved by a larger setback of a redevelopment on the site. 46 The impacts of overshadowing, bulk and privacy are greater than those that would result from a development with less FSR and are beyond those anticipated by the planning controls. While privacy issues can be resolved through the suggested conditions, these privacy impacts are caused by the proximity of the proposal to the adjoining development and could be avoided by a proposal with lesser FSR. 47 While I accept that given the FSR and footprint of the existing building on the site is 1:1, there is an argument that redevelopment on the site could exceed the 0.5:1 FSR control. This may well be the case with a more sympathetic design. However, there is no justification for the FSR proposed or the extent of the exceedence given that it results in impacts that would otherwise not occur. 48 I find that compliance with the standard is not unreasonable or unnecessary in the circumstances of the case and that the SEPP 1 objection is not well founded. On this basis the application must fail. 49 Further, the proposal does not meet the objectives for the 3(b) zone by providing shops and low intensity commercial use, particularly as the commercial component alone exceeds the FSR standard. 50 In considering the objectives of the adjoining 2(b) zone, as required by cl 32 of LEP 1996, the proposal does not meet objective (b) as a building with lesser FSR and greater setback would clearly better improve the amenity and existing characteristics of the locality. Further, cl 32 requires the consideration of measures to reduce adverse impacts of the development on land within the adjoining zone. Clearly a greater setback and lesser FSR would reduce adverse impacts. Orders 51 The Orders of the Court are: 1. The appeal is dismissed. 2. The development application (173/2007) to demolish an existing building and construct a two storey retail/commercial building with basement parking for 11 cars at 235-239 Bronte Road, Waverley is refused. 3. The exhibits may be returned. ___________________ Annelise Tuor Commissioner of the Court ljr 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.