Land and Environment Court of New South Wales CITATION : Weinberger v Waverley Council [2008] NSWLEC 7 Applicant: Piroska Weinberger PARTIES : Respondent: Waverley Council FILE NUMBER(S) : 10609 of 2007 CORAM: Roseth SC KEY ISSUES: Development Application - Development Control Plan - Development Standards :- DATES OF HEARING: 11/12/2007 DATE OF JUDGMENT: 10 January 2008 Applicant: LEGAL REPRESENTATIVES: Mr P Rigg assisted by Ms Z Baker, solicitors of Deacons Lawyers Respondent: Mr C McEwen SC and Mr M Staunton, barrister instructed by Mr S Patterson, solicitor of Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 10 January 2008 10609 of 2007 Piroska Weinberger v Waverley Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Waverley Council of a development application to demolish the existing building and erect a new four-storey residential flat building containing eight apartments over basement parking for six cars on lot 11 section 3 DP 747, known as 122 Curlewis Street, Bondi. The site 2 The site is on the north side of Curlewis Street. It has a width of 12.2m and a depth of 47.9m, with an area of 584m2. It now contains a two-storey apartment building, which is proposed to be demolished. The Floor Space Ratio (FSR) of the existing building appears to be around 0.7:1. There is a tree in the footpath in front of the site. 3 Other buildings in the locality are two, three and four-storey apartment buildings along the north side and one and two-storey shops and apartments along the south side of Curlewis Street. To the north of the site are three-storey apartment buildings fronting Beach Road. A three-storey apartment building, with an attic floor within the roof, at 32 Beach Road adjoins the site to the north. That building was recently approved and is also on a site that is 12.2m wide. Adjoining to the east is a three-storey building over ground level parking that spans over three allotments and is known as 124-128 Curlewis Street. That property contains several mature trees along the common boundary. Adjoining to the west is a three-storey inter-War building known as 120 Curlewis Street. 4 The parties took me to three recently approved buildings on 12m wide sites in Beach Street, Nos 32, 58 and 60. As mentioned above, No 32 adjoins the site to the north. Nos 58 and 60 are three-storey apartment buildings without attic. All three are over partially underground parking. The proposal and its history 5 The applicant proposes to demolish the existing building and erect a new four-storey residential flat building containing eight apartments over basement parking for six cars. The vehicular entry is near the western boundary, set back by 0.5m from the boundary. 6 The applicant lodged the development application in March 2006. Following the submission of amended drawings, the council notified the amended application and received three objections. In June 2007 the council refused the application on eleven grounds. The main criticism was that the proposal breaches many of the controls in DCP 2006 (see below), most importantly the maximum FSR. Relevant planning controls and policies 7 State Environmental Planning Policy 65 – Design of Residential Flat Buildings (SEPP 65) establishes requirements for the amenity of residential flats. Waverley Local Environmental Plan 1996 (the LEP) zones the site Residential 2(c1). Waverley Development Control Plan 2006 (DCP 2006) became operational in January 2007, after the lodgement of the application. This is the development control plan that has to be considered under s79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 (the Act). Waverley Development Control Plan 1 (DCP 1) was in operation when the development application was lodged. It was common ground that the Court should have regard to DCP 1 as a matter of public interest, under s79C(1)(e) of the Act. Matters in contention 8 The council submitted its Statement of Contentions containing seven matters. During the hearing the matters in contention were reduced to two major issues, namely: · Is the proposal's non-compliance with the maximum FSR in DCP 2006 (and DCP 1) justified? · Is the proposal's impact on the streetscape acceptable? 9 The weight of evidence suggested that the building did not appear out of context in Curlewis Street. This left non-compliance with the DCP as the only major issue. The objectors' evidence 10 The Court heard the objections of three objectors. Ms Cheryl Meyerson, who lives at Unit 1, 120 Curlewis Street, said that the proposal breaches numerous planning controls, is too bulky and casts shadows in the afternoon. Her particular concern was about the driveway being close to her apartment and the noise that this would create. 11 Mr Alexander Mekler, the owner of 124-128 Curlewis Street, a building that was built in 1990 and adjoins the subject site to the east, said that he was concerned about the 2.4m setback (which he wants increased to 3m), lack of adequate parking, impact on trees on his site, and the precedent that would be set for breaching controls. I note that the Court has received a joint arborists' report that reached agreement that the trees on 124-128 will survive. 12 Mr Brett Maksimovich, who lives in Unit 2 of No 124-128, said that he was concerned about his privacy and the lack of adequate parking provided in the proposal. Accuracy of drawings 13 The council did not include the inadequacy of drawings among the matters in contention. Despite this, I feel obliged to note that the accuracy of the drawings is so poor that, were the proposal otherwise worthy of approval, it would be necessary to require a new, accurate and properly dimensioned set of drawings, otherwise the approval would lack certainty. For example, the width of the site scales 0.5m less than it is dimensioned. A longitudinal section is missing, though the section lines are shown on the plans. There is no survey and the architectural plans show neither contours nor spot levels on the site and on surrounding sites. Section A-A suggests that the planter boxes on the western side of the ground floor terraces are 1.5m wide, yet on plan they measure only 1m. The same section shows that the wall proposed along the western boundary of the site, at the point of the cross section, is about 3.5m above the path that runs along the eastern side of No 120 and leads to its entrance. In the absence of a survey I cannot estimate how high this wall would be along the section that runs next to Ms Meyerson's apartment, though clearly it has an effect on her amenity. Non-compliance with the maximum FSR of 0.9:1 The experts 14 The experts were Mr Neil Kennan, a town planner retained by the council, Mr Neil Ingham, a town planner retained by the applicant, and Mr Brett Newbold, a town planner and urban designer retained by both. Mr Newbold was asked to concentrate on the "urban design" aspects of the case, while the other two were to deal with planning matters, such as the controls in the DCP. I do not think that urban design and planning are separable; nor that one may form an opinion on the urban design aspects of a proposal without considering the planning regime. In the event, common sense prevailed and the experts avoided a demarcation dispute. Each expert dealt with both planning and urban design. The extent of non-compliance and the experts' view 15 DCP 1 includes a statement to the effect that an applicant may breach a numerical control, so long as the application satisfies the aims and objectives of the control. DCP 2006 provides that the council may waive certain controls because of the physical characteristics of a site. Both DCPs thus make it clear that compliance with numerical controls is not the only way to achieve an acceptable development (and, conversely, that compliance is not sufficient to guarantee approval). 16 The numerical controls of both DCPs establish a minimum allotment width of 15m. The site is 12.2m wide and cannot be made wider by amalgamation. All three experts accepted that in the circumstances the minimum width control should not be applied. 17 The side setback controls of DCP 2006 require a setback of 4.5m at ground and 6m at the third floor level. DCP 1 required 3m at ground and 4.5m at third floor level. Clearly, applying either of these controls to the site would render it incapable of development for a residential flat building. All three experts agreed that it was not necessary to apply the side setback controls strictly. It was unclear whether Mr Kennan accepted the side setbacks as proposed, or whether he supported Mr Mekler's objection that the setback should be 3m. 18 Both DCPs establish the maximum FSR of 0.9:1 for the 2(c1) zone. The FSR of the proposal is 1.26:1. The proposed floor space is 210m2 in excess of the floor space that would comply with FSR 0.9:1. Ninety-three square metres of this are on the fourth level, to which the applicant refers as "attic". (This last figure is the result of my measurement and may not be accurate since the drawings are inadequately dimensioned and not accurately to scale.) Mr Kennan said that there was no justification for non-compliance with the FSR control. Mr Ingham believed that the justification for the higher FSR lay in the two neighbouring sites, both of which were developed to higher FSRs than 0.9:1. If development on the subject site were held to a FSR of 0.9:1, the resulting building would have low amenity. 19 Both DCPs permit an attic above the maximum height. DCP 2006 sets the maximum external wall height at 9.5m. DCP 1 set it at 10m. DCP 2006 allows an attic within 60o projected from the ceiling of the third floor (referred to as the pitched roof attic). It also allows an attic referred to as a flat roof attic, which must be contained within the 60o envelope and must be set back 2m from the edges of the building. The attic must not occupy more than 40% of the area of the floor below. Attics must not contain living or dining rooms. DCP 1 also allowed an attic, but only if it was wholly contained within the roof. 20 The attic in the proposal is not an attic recognised by DCP 1, since it is not contained within the roof. Mr Ingham said that it is a flat roof attic as referred to in DCP 2006. If that is the case, then the attic does not comply with the requirements of DCP 2006 in that it does not fit into the 60o envelope, it covers more than 40% of the area of the floor below, it is not set back by 2m from the side of the building, and it contains living and dining rooms. Mr Kennan thought that the attic floor was unnecessary and should not be allowed. The justification Mr Ingham offered for the attic was that the requirements in DCP 2006 relating to attics have no planning purpose. 21 There are two other minor non-compliances, which, in Mr Kennan's opinion, are not important and may be resolved by conditions. Consequences of the higher FSR and the attic floor 22 The applicant submitted shadow diagrams that compared the shadows cast by the proposal with the shadows that would be cast by a building that complies with the maximum FSR (though it does not comply with the side setbacks, which, the experts agreed, would render redevelopment of the site impossible). It is clear that, during the afternoon at mid-winter, the non-complying building casts a greater shadow on the western wall of No 124/128, including on apartments that receive sunlight only in the afternoon. If one accepts that the side setbacks may be varied, then the non-compliance that mainly causes the additional overshadowing is the non-complying floor space of the attic floor. 23 Two planning principles, established in previous judgments of the Court, are relevant. The first is CSA Architects v Randwick City Council [2004] NSWLEC 179. This judgment dealt with the development of a small and narrow site. The relevant part of the principle states that the main criterion for assessing a proposal on a small and/or narrow site is whether it meets other planning controls, such as density, setback and landscaping. In this case the site is below the required width and the setback cannot be observed. This is all the more reason for observing the FSR control, or, at least, for not exceeding it to the extent that this proposal does. 24 The second judgment is Pafburn v North Sydney Council [2005] NSWLEC 444, which dealt with the assessments of impacts generally. Its relevant part states that an impact that arises from a proposal that fails to comply with planning controls is much harder to justify than one that arises from a complying proposal. People affected by a proposal have a legitimate expectation that the development on adjoining properties will comply with the planning regime. 25 This suggests that the non-complying floor space ratio (or at least that part of it embodied in the attic floor) in this proposal is not justified. However, before I reach that conclusion, I need to turn to the applicant's submission that the additional floor space is justified by the offer of an apartment for affordable housing. Affordable housing and additional floor space 26 Section 4.12 of DCP 2006 deals with Affordable Housing. It states that the council may relax various controls "in exchange for the provision of affordable rental housing". Section 4.12.3(a) states that "an additional floor space bonus may only be permitted where affordable housing is provided". Section 4.12.3(b) states that "developments must demonstrate that all environmental criteria within this Part are satisfied for the bonus FSR to apply". Under a subheading "Attic levels", the DCP states that "bonus FSR can be incorporated in an attic level within the building envelope". DCP 2006 provides no guidance on how much bonus floor space may be given for a certain amount of affordable housing. 27 DCP 1 also allowed additional floor space for affordable housing and it defined the maximum amount of bonus floor space available for it, though it did not define how much affordable housing was required to justify the bonus. The maximum bonus was 15%, establishing a maximum FSR of 1.035:1 for the 2(c1) zone. 28 Despite the fact that DCP 2006 provides no guidance on the amount of affordable housing required to justify a certain level of additional floor space, the council was able to quantify, in its planning report of 8 May 2007, the requirement as two apartments to be leased to council at a weekly rent of $100 for a period of ten years. The council's planning report suggests that the council based its requirement on some formula, though this does not appear to be a formula that is publicly available or in a form that the Court could take into account. The applicant offered one apartment to be leased to the council under the same terms but for a period of seven, rather than ten years. 29 Notwithstanding the council's planning report, the draft conditions of consent tendered by the council make no reference to the leasing of apartments to council, though they include a condition requiring a cash contribution $382,500 towards the council's Affordable Housing Program. In my opinion, neither the council nor the Court has the power to impose this condition. If the proposal were otherwise worthy of approval, the condition would have to be deleted. 30 I turn to the question whether the applicant's offer of one apartment being leased to council at a weekly rent of $100 for a period of seven years justifies the additional floor space. Such a condition could legally be imposed, since the applicant agrees to it. I have no basis no come to view on the amount of the offer as against the additional floor space. I can, however, conclude, that this site, being smaller and narrower than the planning controls require, is not suitable for additional floor space. I base this conclusion on the requirement in DCP 2006 (referred to above) that all environmental criteria within the DCP are satisfied before the bonus floor space for affordable housing can apply. If additional floor space were granted for this development to allow an attic floor against the provision of affordable housing, the environmental criteria in DCP 2006 would not be satisfied. Conclusions 31 It was common ground between all three experts that two controls in DCP 2006 do not need to be applied. The first is the minimum allotment width of 15m. The site is 12m wide, cannot be amalgamated and therefore there is nothing the applicant can do to comply with the control. The second is the side setback. If the side setback controls of DCP 2006 are applied, there is no space left for a building; if the less stringent controls of DCP 1 are applied, the building can be only 3m wide. In neither case can there be a viable building. 32 The approval of the application would involve the setting aside of several other controls in the DCP; controls which the applicant could observe. The FSR of the proposal is almost half as much again as required. As a result, it is higher and longer than a complying building would be and its shadow impact on the neighbouring site to the east is increased. The "attic" floor complies with neither DCP 1 nor DCP 2006, being bigger than allowed, not set back as required and containing the main living areas while it should contain only bedrooms. 33 The approval of the application would involve the setting aside of several controls in DCP 2006 that the application could easily comply with. If those controls were set aside without good reason, it would make it more difficult for the council to apply them in the future. The appeal is therefore dismissed. Orders 1. The appeal is dismissed. 2. Development application to demolish the existing building and erect a new four-storey residential flat building containing eight apartments over basement parking for six cars on lot 11 section 3 DP 747, known as 122 Curlewis Street, Bondi is determined by refusal. 3. The exhibits are returned. __________________ 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.