Land and Environment Court of New South Wales CITATION : Maygood Australia Pty Limited v Willoughby City Council [2010] NSWLEC 1337 APPLICANT Maygood Australia Pty Ltd PARTIES : RESPONDENT Willoughby City Council FILE NUMBER(S) : 11024 of 2009 CORAM: Murrell C KEY ISSUES: APPEAL :- Modification application; streetscape design; bulk and mass. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 65 Willoughby Local Environmental Plan 1995 Willoughby Development Control Plan DATES OF HEARING: 24 May 2010, 1 July 2010, and 20 & 21 July 2010 EX TEMPORE JUDGMENT DATE : 21 July 2010 APPLICANT Mr P Tomasetti SC SOLICITOR D C Balog & Associates LEGAL REPRESENTATIVES: RESPONDENT Ms S Duggan SC SOLICITOR Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 21 July 2010 11024 of 2009 Maygood Australia Pty Limited v Willoughby City Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 This is a 96 modification application under the Environmental Planning and Assessment Act 1979 for a residential flat building approved by the Court 30 December 2008. At the time the Court approved the development application at 31-35 Devonshire Street, Chatswood, it provided for forty two units. Construction of the building has not commenced. 2 This s 96 modification application was submitted to the Willoughby City Council and the council determined the application by approval subject to a number of conditions. The applicant has subsequently appealed council's determination. 3 The Court has the benefit of hearing expert evidence from Ms Debra Laidlaw, an urban planner, and Mr Nigel Dickson, an architect urban designer whose office had input into the amended plans. 4 The proposal, as provided for in council's Statement of Facts and Contentions, is that the number of units be increased from forty two to forty seven. The unit mix is proposed to be changed in that the development application approved by the Court provided for fourteen one-bedroom units, the s 96 application maintains this at fourteen, the number of two-bedroom units increases from three to nine and the number of three-bedroom units decreases from twenty five to twenty four, providing for a total of forty seven units in all. 5 According to the council officers report, the reason for the s 96 application is that the applicant maintains it is in response to market forces. 6 Neighbour notification was carried out and it is noted that there were objections from the properties 34 to 38 inclusive in Claude Street, who also objected to the original development application on the basis of impacts on those dwelling houses. 7 As noted in the Court's previous judgment, the Claude Street properties are also the subject of a higher density zoning and in the longer term when the market dictates, no doubt they will be redeveloped and this development must share in the required separation distances for the future development potential of those sites. 8 The applicant has amended the s 96 plans during the course of these proceedings. It has transpired that there were a number of errors pointed out by the respondent and there has been an iteration of plans. Exhibit E are the plans that the applicant now seeks to rely on. 9 Ms Laidlaw in summary is of the opinion that the proposed modifications to the development seek to maximise the floor space at the expense of the design of the building in its context. She notes that the application as approved had a floor space ratio of 2.16:1 and the s 96 application has a floor space ratio of approximately between 2.3 to 2.35:1. The additional floor space has been achieved by the building being pushed out in terms of the side boundary setbacks. 10 In order to assess this development application I must have regard to the provisions of s 96 of the Environmental Planning and Assessment Act 1979. S 96 of the Act provides that modifications may be made if the consent authority is satisfied that it is substantially the same development. The council does not contend that the s 96 modification is not substantially the same development as that approved by the Court. 11 It is important in this exercise of assessing the modification application that I have regard to the original proposal as approved and not a comparison with the various iterations of the plans. Also in terms of subclause 3 of s.96 in determining an application for modifications, I must take into consideration the matters referred to in 79(C) (1) as are of relevance to the subject development application. In terms of legal authorities of this Court a s 96 application matters such as SEPP 1 objections are not required. 12 In terms of State Environmental Planning Policy No. 65 design quality of residential flat development, this is a relevant matter and there are 10 design principles that must be taken into consideration in assessment of modification applications. Modifications to consents must also have regard to a design verification statement and this was submitted for the s 96 application submitted to the council. Whilst this design verification is not in respect of the current set of plans, nonetheless there is no issue taken by the council in this regard. 13 The Willoughby Local Environmental Plan 1995 has a number of objectives of the floor space ratio as follows: (a) to limit the intensity of development to which the controls apply so that it will be carried out in accordance with the environmental capacity of the land and the zone objectives for the land; (b) to limit traffic generation as a result of the development and (c) to limit the bulk and scale of that development. The residential D zone objectives in the LEP are: (a) to consolidate high rise and high density residential flat buildings in accepted and accessible locations and (b) to enable provision of appropriate communal recreation facilities for use by residents. 14 The floor space ratio for the subject zone is 1.5:1 as prescribed in locality C. I have been advised that an amendment to the LEP has recently been gazetted such that the FSR for the subject site is now 1.7:1. 15 Nothing turns on the FSR and a SEPP 1 objection is not required, nonetheless the building and the building design and the context of the area in terms of the SEPP 65 design principles and in terms of s 79C are matters to take into consideration in an assessment of the modification application. 16 In my assessment of this application I have the benefit of presiding in this matter previously and the approval contained a number of conditions, including deferred commencement conditions. However, I have not had the benefit of seeing the plans that were submitted to satisfy the deferred commencement provisions which required an amended landscape plan and various other matters which were to be incorporated into an amended set of plans prior to the consent operating. I have been advised that the deferred commencement conditions have been satisfied. 17 The applicant's expert Mr Dickson, who has also been involved in the refinement of the amended plans and he is of the opinion that the site is well located and that the proposal as amended or as modified in the s 96 application, satisfies the requirements of the Residential Flat Design Code under SEPP 65, and in particular in terms of separation distances and the proposal is worthy of approval in his opinion. Furthermore, he considers that the amenity for the residents, that is the internal amenity for the residents, is more appropriately addressed by the provision of additional floor space within the units, including the addition of bedrooms to certain units as well as second bathrooms to a number of the units. 18 As I said, there is no contention raised by the council as to whether this is substantially the same development. I do note in terms of a comparison with the plans that were approved by the Court, which is the relevant set of plans under which I must have regard to, that there are significant changes in the internal configuration and floor layout of each level of the nine-storey residential flat building. 19 For the local context in terms of the site and the environs suffice to say that it adjoins the Chatswood Commercial Centre to the north and a multistorey car park. In the Court's assessment of the original application, the site was considered to be well located for higher density development within the area, for both of infrastructure and of being proximate to a town centre. 20 The site is gently sloping, with a fall of some three-and-a-half metres from the northwest to the southeast corner of the site. The area is one where multistorey residential flat buildings predominate built over the last several decades and some with above ground parking. The proposal must fit in terms of the context and it is important to address the public domain and provide a positive contribution in of the streetscape. 21 Ms Laidlaw's objections do not just relate to the fact that there is a greater amount of floor space in the proposed development, she also expressed concern that the proposed building as to be modified, is one that does not fit as well as, or does not fit in terms of the streetscape and in particular, the intrusion into what were the generous setbacks to the southern boundary of the proposal. There is no issue with respect to amendments to the northern boundaries in her opinion. The Court is aware of the context and the fact that the proposed development has no impact in terms of the car park to the north and commercial area. 22 The issue for the adjoining properties, in particular those that front Claude Street, is to ensure that the potential of those sites is not diminished or compromised by the development of this site and as such as was noted in the previous judgment, there must be an equitable sharing of setbacks, to provide amenity for residents or future occupants of these development sites. Similarly, in terms of the building to the south, the setback should allow for appropriate landscaping and separation for a nine-storey buildings to sit comfortably within its own site and not to impact on the adjoining properties. 23 The applicant maintains or claims that the setbacks are still as required by the Residential Development Code, under the SEPP 65. The council is of the opinion that these setbacks are merely one control and that the Willoughby planning regime provides for its own set of guidelines and planning controls, such that one does not just fill up the building envelope, as dictated by setbacks that comply with the Residential Flat Code. I agree that the building envelope can not be looked at in terms of mere setbacks. But clearly, an integrated design provides for more than the filling up of a building envelope on a site with setbacks. 24 The council maintains that some of the amendments or modifications required or requested by the applicant are appropriate and council's officers report provided for an assessment in that regard. However, the council considered that there were certain amendments sought by the applicant that provided for a building that did not sit comfortably, in particular in the streetscape. The elevation that is of the most concern is that fronting Devonshire Street and the juxtaposition with the building to the south, known as Chamberlay. 25 The design of the building is also a matter that the Court must have regard to. Ms Laidlaw is concerned in that the extension of the building by the solid block on the southwest corner, is inappropriate and provides for an awkward design resolution, in order to enable an additional bathroom, a second bathroom, to three levels of units. 26 I say at this point that it was submitted on behalf of the applicant that the amendments are de minimus when one compares the last 96 set of plans to the current set in Exhibit E. However, if one has regard to the original approval, I am of the opinion that a number of the modifications are not de minimus. 27 On the ground floor plan for level 1, the modification provides for a reduced setback in particular to the southwest corner. The bathroom encroaches into the setback areas, such that it would provide for an 8.4 metre setback to the adjoining property at that point. I note that the majority of the southern elevation is at a greater setback than the bathroom elements. Nonetheless, it is the bathroom elements that would be visually prominent in the streetscape and provide for a significantly changed design philosophy for which approval was given. This portion of the building was previously 12.45 metres setback from the southern boundary. Ms Laidlaw generally, does not have any objection to the reduced setbacks to the front, provided a minimum of 9 metres is provided. Ms Laidlaw considers it should be slightly greater, that is 9.2 metres. 28 In terms of levels 2 and 3, on the change being de minimus, it is noted that the Council approved the s 96 modification application, but provided a condition such that the modified plan would have to delete certain portions. Council's condition however, still allowed for a two bedroom unit which had previously been a one bedroom unit. Similarly, on levels 2 and 3 it is the same configuration as for level 1, for that southwest corner. 29 There are other changes to setbacks from the eastern boundary and Ms Laidlaw is of the opinion that these setbacks, or the further incursion into the setbacks should not be allowed. Whereas, Mr Dickson considers that the setbacks still comply with the Residential Flat Code. The amended proposal provides for reconfigurations in the north-eastern corner such that the building is 6.85 metres from the rear boundary. Previously, it was some 10.65 metres from the rear boundary. For levels 4 to 8, there are a number of changes in that the southern boundary setback has been reduced by some 450 millimetres to 12 metres minimum. 30 In terms of the level 9 plan, this provides for significant changes to that shown in the approved plan. Instead of two units on the upper level 9, there are now four units proposed. That is three units with three bedrooms each, and two bedrooms to the fourth unit. The setbacks have also been reduced to the upper level, such that the face of the wall to the southern boundary is now proposed at 13 metres, as opposed to previously 14.3 metres. Similarly, the balconies have been narrowed to increase the floor space of each of the units. Previously the upper level units provided for very generous terrace balcony areas in the plans approval by the Court. The setback to Devonshire Street has also been reduced from 12 metres to 9.4 metres and unit 45 in the north western corner contains balconies on the northern elevation reduced to 1 metre and for unit 44, the setback to the northern boundary has been decreased from 11.3 to 9.6 metres. Similarly, the balcony in this location has been decreased from a width of 4.5 to 3 metres. 31 During the course of the proceedings, the plans were amended. It was discovered that the balconies, or many of the balconies, did not comply with the Residential Design Flat Code, some being approximately only 1.45 metres wide, as opposed to a minimum of 2 metres. Whilst it was raised by Ms Laidlaw, not initially by the council, that the balconies, in particular for the three bedroom units, are a maximum of 2 metres wide, in some places less in other places, and that not all three bedroom units have balconies affording a 2.4 metre width, which for larger units is a rule of thumb, in terms of the Residential Design Flat Code. 32 It was submitted on behalf of the respondent, that the applicant Mr Dickson has sought to rely on the Residential Flat Design Code, with respect to setbacks and other matters, but in terms of other 'rules of thumb' within the Residential Flat Design Code, he has not been consistent in the application of the 'rules of thumb'. It is noted that the Residential Flat Design Code is a matter for consideration under SEPP 65 and it is not a mandatory matter and this was stated by Ms Laidlaw who also referred to the controls contained within the council's own planning regime as still being relevant. It is recognised that the SEPP 65 has been introduced to provide for 'rules of thumb' and consistency throughout the states. However, council's regime is still relevant in the assessment of development applications. 33 At the same time this is a s 96 application and I must focus on the matters that are relevant to my assessment under s 79c of the Act. I am guided by the ten urban design principles articulated in SEPP 65. 34 I have made a determination on the amendments that the applicant seeks in the s 96 application and I will just turn to exhibit 11 which is the joint report exhibit 9 of the planners and the council's latest set of 'without prejudice conditions', which is exhibit 11. 35 In this regard, having considered the original consent and the context of the original consent which is a matter that is relevant to my consideration, as well as those matters under 79C, I have determined that the condition council seeks to impose for the south western corner is appropriate. That is the area to accommodate the additional bathroom, creates unreasonable impacts on the streetscape presentation and also in terms of the architectural integrity of the building. In this regard, I have been persuaded by Ms Laidlaw's evidence that it does not fit with the design of the building and does appear as a bulky addition to the building. 36 The original proposal even though the photo montages cannot be always relied upon, shows a design philosophy that if carried through provides for the building to sit comfortably in the streetscape. The modification application however creates greater bulk and emphasises the south western corner, and from a streetscape point of view this is the most important presentation of the building, and the modification sought provides for an awkward relationship with the upper floors in my assessment. 37 It was submitted on behalf of the applicant, that this is subjective. However, the urban design principles in SEPP 65 are introduced and design and aesthetics of the building are a relevant consideration. I am persuaded by Ms Laidlaw's evidence that this corner would appear to be not part of the building as designed and it is a modification driven by a purpose to provide bathrooms in an element which in the overall context of the building, does not sit comfortably in the streetscape and in terms of the rhythm of the buildings and the balconies we see in the area, it is an inappropriate extrusion. As such, the condition of council is imposed. 38 Similarly, in terms of the upper level, that is the ninth level, which is once again the same elevation most visible in the streetscape. That is the southern elevation of the proposed building, I am not persuaded by the applicant's evidence on the presentation of this element. The ninth level in the original proposal, certainly was one that was less visible and appeared as a more floating element and the current proposal with the solid wall to the side on the southern boundary on the ninth level, emphasises the ninth level, as opposed to providing a more reclusive and an appropriate top storey element. 39 Therefore, in my assessment the condition provided by the council is imposed and the southern 1.1 metre additional setback from the southern boundary, is required. It is recognised that this will in fact necessitate some internal redesign, which may require the removal of a bedroom from those units. This additional 1.1 metre setback area may be converted to form part of the balconies for units 46 and 47. The western wall of the internal area of level 9 shall also be setback an additional 1 metre as measured from the western boundary. The western boundary being the Devonshire Street boundary. These are conditions B and C in Exhibit 11 of council's. Condition F was also in dispute between the parties, that is the 1.4 metre protrusion in a southerly direction for units 6, 14 and 22, and this is to be removed and the floor plan is to be reconfigured to provide a single bathroom serving both bedrooms and opening to the living area of the unit. 40 The other conditions in contention, relate to I, J and K. That is the western walls to units 1, 7, 8, 9, 14, 15, 16, 17, 22 and 23, in my assessment in the overall context of the building will not significantly add to the bulk to warrant the refusal of this modification. Therefore, conditions I, J and K are deleted, that is the western walls to the units do not require to be set back 9.2. This has the effect of 9 metres and condition J I am satisfied that can be deleted as well. The southern wall to units 26, 30, 34, 38, 42 at levels 4 to 8, is to be a minimum of 11.1 and the applicant's plans are satisfactory in this regard. Condition K for the southern wall of units 27, 31, 35, 39 and 43, is also not necessary to impose. This requires a minimum setback of 12.45. The deletion of conditions I, J and K provides for additional floor space for the applicant and the reconfiguration of the units as generally shown in the plans. 41 The other conditions are as agreed to between the parties, except for condition A, that is the proposed modifications to units 2 and 3, are allowed for the eastern boundary and therefore this is deleted. 42 Turning to the question of the ramp, the 10.33 as opposed to 10.5, I noticed in the original conditions of consent a condition requiring headroom of 3.5 metres. I do not know where that stands at this point in time, but this is a matter that will need to be addressed in a consolidated set of amended plans. I will not issue final orders, until there is a set of plans that are consistent one with the other. 43 Similarly, a landscape plan is also required, which would be an amendment to that that was referred to in the 'deferred commencement' condition. The amended plans are to incorporate the requirements of the 'deferred commencement' condition. Similarly, a long section of the ramp is required to resolve once and for all the issue of the driveway ramp and the headroom that council may require. 44 Similarly, a plan showing those units that may be adaptable units is required. I also note, from the set of plans in Exhibit E does not provide a plan for the basement car parking. There was a requirement in the original approval that the parking be reduced, from 64 space to 58 spaces and this also had the advantage of providing for greater deep soil planting area and given the reconfiguration of the size and number of units, a basement plan noticeably absent form the set of plans for this modification application. 45 The parking consented to previously was 58 spaces, as opposed to 64 spaces, so the applicant will need to design the car parking layout, such that it does not encroach into any additional deep soil areas gained by the condition in the original approval. Similarly, a landscape plan needs to be provided, such that all the plans are once and for all consistent, one with the other. 46 It is most unfortunate even though the applicant and respondent has expended considerable efforts and money for this s 96 modification application there certainly has been a lack of detail in plans and a lack of consistency throughout the plans despite the many iterations. 47 Nonetheless, at the end of the day I am satisfied that will not all but some of the modifications sought can be approved without environmental impact and I have described above those conditions of council that I have determined should be imposed. In particular it is important to retain the southern and south-western elevation, the level 9 and the corners of levels 1 to 3 and as such those modifications are not allowed. Otherwise the appeal is generally upheld or will be upheld on the receipt of an amended and consistent set of plans. 48 In terms of the parking I notice that the previous conditions allowed for a maximum of two parking spaces per three bedroom units, clearly that can not be achieved. One car parking space is adequate in terms of council's controls and this would be consistent with the parking controls for the Chatswood area and, given the proximity of the subject site to good public transport, this is appropriate for this site. 49 The number of visitor spaces I am unsure as to whether this is altered by increasing the number of units from forty-two to forty-seven but this clearly must be addressed in an amended basement car parking plan, the footprint of which is not to exceed that approved by the Court initially so that increased deep soil planting is achieved. At this point I will ask the applicant how long it requires in order to get all of the plans in order. The applicant must have regard also to the Court's practice direction for Class 1 appeals set out in sch A, the requirements for plans. I refer the applicant to the Court's Class 1 Practice Note, that is the sch A for plans, noting that room names, area and dimensions must be provided. I require a set of A1 plans as opposed to an A3 set of plant. Each room must be dimensioned as well as the other requirements set out in the Court's sch A. I can see that many of the bedrooms are very small. The applicant is seeking to put two and three bedrooms into spaces at the expense of, for example, providing for adequate balconies et cetera. 50 It is important that there be certainty in the planning process and the plans that have been provided or furnished by the applicant do not provide for confidence or certainty such that the Court would be prepared to approve the plans before it in Exhibit E. 51 Similarly, the amended plans should address the three bedroom units with balconies that would appear to be inadequate in terms of the size of those units for their width. There is plenty of length in the balconies but at the end of the day it is the width that also provides for usable areas on balconies and one must have regard to the fact that the proposed modification reduces the amount of communal open space areas with reduced setbacks and therefore the importance of balconies of living area is more in focus. 52 Therefore, in terms of when the plans are submitted the applicant needs to give consideration to providing 2.4 metre width for areas proximate to living areas, however the balconies are not to come out further into the setback area but in fact there must be a reduced area within the units themselves, that is the balconies are to be widened to 2.4 metres where they are proximate to living areas meaning the units will suffer a slight reduction in floor area. The amenity for the occupants is important and usable balconies should be provided in new developments. This does not mean that the balconies need to be 2.4 metres for their entire length but there must private open space areas provided in particular for the three bedroom units that are usable spaces. In this regard I do not accept Mr Dickson's evidence and prefer the evidence of Ms Laidlaw. 53 The Court now seeks from the applicant an estimation of the timeframe required for a set of plans to be submitted and filed in the appropriate form. This includes an amended landscape plan. I do not have the benefit of seeing a landscape plan also required by the deferred commencement. 54 Twenty-eight days, that takes us to 18 August. So I'll allow till 20 August for an amended set of A1 plans and a landscape plan, and the plans must be a full set of plans, that is including basement parking, adaptable units plan and the access ramp long section and one must have regard to the original conditions of consent the condition amended plans required as part of the deferred commencement. It was agreed previously between the parties because it wasn't ventilated on the first occasion, a bulkhead providing a maximum clearance of 3.5 over the driveway. These are just some of the small things that need to be picked up in the amended plans. And for example it was also quite clear the conditions for the basement car parking in the deferred commencement 2(c) basement car parking is to be amended deleting spaces 20 and 24 at both basement levels 1 and 2 and reduce the excavation and external basement wall location to column line and have bicycle lockers et cetera and delete car spaces 30 and 31 and as I stated this also provided for more deep soil landscaping areas. 55 There was a condition, I don't know why, that was one that was previously agreed to between the parties, that is the detailed colours and finishes board which was (e) but it referred to in subcl (iii) level 9 walls to be painted in a darker or assessive colour. I don't know whether that is necessary or appropriate with the current design so they're matters that also need to be looked at in consultation with the council. As I said these conditions that had previously been agreed between the parties. Then there were landscaping requirements in terms of documentation which were in subcl (g) of condition deferred commencement 2 which I would hope have already been satisfied but nonetheless they need further refinement in terms of the modification application. 56 In terms of exhibit 11, description of the plans, that will be the new plans. They're all agreed apart from when we get to 3A. Condition 3A(a), that is to be deleted because I allow that modification; 3(b) is imposed, that means that condition remains; 3(c) is imposed; 3(d) and (e) were agreed to already; 3(f) is imposed; 3(g) was previously agreed to; 3(h) is a matter for the amended plans to be able to demonstrate what is required. 3(i), (j) and (k) are deleted and these modification allowed. 3(l) is agreed to between the parties. The revised landscape plan, needs to be provided as opposed to conditions. 57 The conditions are not required until after council receives the amended plans and assesses same. As many of the conditions as possible should be incorporated into the new set of plans so that one should be able to pick up the new set of plans to understand what the final building will look like. 58 A basix certificate is also required for the amended plans and the other thing to note for the plans is that balconies in particular for three bedroom units need to be increased in size, that is at the expense of the floor area of units. 59 The above represents my preliminary findings and I will make final orders on the receipt of: satisfactory plans to reflect my findings above; and on the receipt of the amended conditions. On these matters being attended to the final orders will be that the appeal is upheld in part. ___________________ J S Murrell Commissioner of the Court djj/ajl 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.