Land and Environment Court of New South Wales CITATION : Myagah No 1 Pty Limited v Waverley Council [2010] NSWLEC 1285 APPLICANT Myagah No 1 Pty Limited PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10275 of 2010 CORAM: Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- existing use - demolition of an existing building and the construction of a five-storey residential flat building - bulk scale and height - front setback/amenity impacts - rear setback/ solar access - overlooking of adjoining balconies - deep soil landscaping - balcony width Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 State Environmental Planning Policy No. 65 DATES OF HEARING: 27, 28 September 2010 DATE OF JUDGMENT: 25 October 2010 APPLICANT Mr G McKee, solicitor SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr M Staunton, barrister SOLICITORS Sparke Helmore JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 25 October 2010 10275 of 2010 Myagah No 1 Pty Limited v Waverley Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Waverley Council (the council) of DA 680/2009 for the demolition of an existing building and the construction of a five-storey residential flat building containing 17 units consisting of 3 units on the ground level (Units 101, 102 and 103), 4 units on Level 1 (Units 201, 202, 203 and 204), 4 units on Level 2 (Units 301, 302, 303 and 304), 4 units on Level 3 (Units 401, 402, 403 and 404) and 2 units on Level 4 (Units 501 and 502). A basement car park provides 16 car parking spaces, through the use of car stackers, and a garbage room, storage cages and bicycle storage. The site and surrounding area 2 The site is1-1A Lamrock Avenue, Bondi Beach (the site). It is irregular in shape having a frontage of 27.47 m to Lamrock Avenue, an average depth of 20.5 m and a site area of 524.4 sq m. The site contains a residential flat building erected some 80 years ago. The building contains 9 flats with no off-street parking. 3 The surrounding area is made up of retail, commercial, mixed use and residential development. Bondi Beach is located just to the east of the site with retail development located along Campbell Parade. Mixed commercial and residential development is located adjoining the site in Lamrock Avenue and Jaques Avenue. The predominant form of development, opposite the site in Lamrock Avenue, is older style residential flat buildings 4 A recently constructed mixed commercial/residential building adjoins the site in Lamrock Avenue and extends around the corner into Jaques Avenue (10-12 Jaques Avenue and 3-7 Lamrock Avenue). Planning controls 5 The site is zoned Business 3(a) - General Business under Waverley Local Environmental Plan 1996 (LEP 1996). The proposed development benefits from existing use rights because of the existence of the residential flat building. Section 108(3) of the Environmental Planning and Assessment Act 1979 provides that any provisions that derogate or have the effect of derogating from the existing use provisions have no force or effect. It was agreed that the while the council's planning controls do not strictly apply, the controls provide some guidance in considering the context and impact of the proposal on the character of the area. 6 The site is within the Bondi Beach Precinct and cl 13(1) of LEP 1996 provides for a building height of 15 m in this precinct. Clause 13(2) provides specific considerations. Clause 30 requires an assessment of the probable aesthetic appearance of the building as it is within view of Bondi Beach. 7 Waverley Development Control Plan 2006 (Amendment No. 4) (DCP 2006) provides requirements for multi-unit housing. Part F2 provides requirements for Bondi Beach with specific requirements for the site (Development Control Area 24) at cl 3.0. These include "maintain and develop ground floor retail space", "provide continuous pedestrian cover", "provide roof terrace to street frontage", "provide solar access to adjacent property", "build to front property boundary setback over 9 m", "limit ground floor commercial to low service requirement uses" and "setback 1.5 m from front property boundary". 8 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to residential flat development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (the Code) (cl 30(2)(c)). The contentions 9 The contentions raised by the council relate to: o the unsatisfactory relationship of the proposed development to existing and likely future development by way of its bulk scale and height, including excessive floor space ratio (FSR), o the inadequate front setback and consequent impact on the internal amenity of the ground floor units, o the inadequate rear setback and consequent inadequate solar access to some units, o the potential for overlooking of adjoining balconies, o the inadequate deep soil landscaping, and o the inadequate sized balconies. 10 On the site view, residents of the adjoining property to the east raised concern over the potential overlooking from the main bedroom on Levels 1, 2 and 3 and the kitchen on Level 4 of the proposed development to the balcony areas of their properties. A further resident of the area objected to the further loss of daylight created by the height of the proposed building. Bulk scale and height The evidence 11 Town planning evidence was provided by Mr Harvey Sanders for the council and Mr Andrew Minto for the applicant. Urban design evidence was provided by Ms Gabrielle Morrish for the council and Mr Geoff Baker for the applicant. 12 The development was amended on a number of occasions, including minor changes during the hearing to respond to the evidence of the council's experts. The final plans, and those relied upon by the applicant, are identified as Exhibit J and while they were produced after Mr Sanders and Ms Morrish had given their evidence, I am comfortable that their evidence can be tested against the Exhibit J plans. 13 Mr Sanders states that the proposed development is not acceptable for a number of reasons. First, the development will have an adverse impact on the streetscape as a consequence of its limited setback. The existing residential flat building on the site is setback around 3 m from the Lamrock Avenue frontage whereas the proposed development is setback only 1.5 m. In his opinion, this provides insufficient separation from the street and pedestrian and vehicular traffic for residential use given that the zoning anticipates commercial uses at street level. Mr Sanders notes that the balconies at the upper levels are located on the street alignment with no setback provided. Second, Mr Sanders states that the proposed upper level will be visible from various vantage points in the public domain, including Campbell Parade and would result in the development having an inappropriate relationship to the existing buildings around the site. This manifests itself through the FSR 3.2 4:1, compared to the LEP 1996 FSR requirement of 3.0:1. 14 Ms Morrish also raises concern over the visibility of the upper level, particularly when viewed from Lamrock Avenue and along with the adjoining laneway for the adjoining property facing Campbell Parade. Ms Morrish suggests a setback to the southern half of the east facade of Level 4 by 2 to 3 m to achieve a reasonable outcome. The laneway facade should be provided with more articulation and visual interest to minimise its perceived bulk. Other concerns raised by Mr Morrish relate to the entry to Lobby 2, the overhanging of the upper floor at the rear and the design of the upper level balconies facing Lamrock Avenue. 15 Mr Minto states that the proposed building sits comfortably in its context including the recently constructed five-storey development to the west, which runs from the corner of Jaques Avenue to the site. Mr Minto notes that the proposed 1.5 m setback aligns with the setback on this property. In Mr Minto's opinion, the FSR relied upon by Mr Sanders does not truly reflect a measure of bulk and scale as some 59 sq m of the floor area in his calculation includes the storage areas in the basement car park. The exclusion of these areas from the FSR calculations would provide a FSR of 3.13:1. 16 On the issue of visibility of the Level 4 from the public domain, Mr Minto states that the upper level is setback 4.57 m from the front boundary and 3 m from the front facade. In his assessment, Level 4 will not be visible by a person standing directly across the street in Lamrock Avenue. He however accepts that the upper level will be partly visible from Campbell Parade however this part of the building will be a recessive element in the view and not dissimilar to a number of other structures located above parapet height within this view catchment. In accepting that the proposed building will breach the 15 m height control, the 500 mm non-compliance will not be discernible from locations in Campbell Parade. 17 Mr Baker accepted a number of the concerns of Ms Morrish in relation to the prominence of the upper floor, the setback to the laneway, the laneway façade, balcony width, design and shape and the overhanging of the upper floor at the rear although he did not accept the extent of the change suggested by Ms Morrish to address their concerns. Findings 18 I accept the general proposition of the experts that the upper level of the proposed development should not be an overly visual element of the building however I do not accept the evidence of the council's experts that it should be hidden from view from any location. The evidence of Mr Minto was that the building satisfies the 15 m height control with the exception of a small part of the building that exceeds this height requirement by some 500 mm. The area of the departure from the height requirement was not visible from Lamrock Avenue or Campbell Parade. A number of photomontages were provided to show the visual impact of the upper floor from various locations and with different floor-to-ceiling heights of 2.4 m and 2.7 m. A roof design that incorporated both heights was also provided as an alternative but not be preferred option for the applicant. 19 With the benefit of the site view from different locations in Lamrock Avenue, Campbell Parade and areas towards Bondi Beach, I am generally satisfied that the proposed 2.7 m floor-to-ceiling height, when combined with the parapet and setbacks from Lamrock Avenue provides a recessive, but not necessarily invisible, element of the building from Campbell Parade and Bondi Beach. I agree Mr Minto that there are examples of more contemporary buildings with the upper levels setback from the lower levels. When this is combined with the wide range of architectural forms, including the requirement in DCP 2006 that many of the older buildings and facades are to be retained, it is clear that a consistent building form is not contemplated for the area around the site. In my view, the consideration required by cl 30 would not result in the need to amend the design. 20 When viewed from Lamrock Avenue, the proposed building provides the same setback as the recently constructed development at 10-12 Jaques Avenue and 3-7 Lamrock Avenue. The 1.5 m setback complies with the requirements of Part F2 of DCP 2006 although I accept that the setback contemplates commercial development at ground level. The parapet of the proposed building also matches the parapet of this building. It was also agreed by the experts that the upper level of the proposed building would not be seen by people standing in Lamrock Avenue except when standing opposite the laneway that provides access to the adjoining building in Campbell Parade. The visual impact of a five-storey building from this location was an issue raised by Mr Sanders and Ms Morrish. In response, the Exhibit J plans provide for the partial setting back of Level 4 towards the street frontage and two vertical indents in the elevation for Levels 1, 2 and 3 but not ground level or Level 4. In accepting that these elements, when combined with the small horizontal windows on Levels 1, 2 and 3, go some way to reducing visual bulk and height of this elevation of the building, I am not satisfied that these changes are sufficient. I agree with Ms Morrish that the whole of Level 4 should be setback from the boundary. While Ms Morrish advocates a setback between 2 and 3 m, I accept that a setback of 1 m would be sufficient to achieve a break in the uninterrupted 5-storey wall on this elevation. 21 I also agree with Ms Morrish that the cantilevered bedrooms on Level 4 at the rear of the proposed building create an unacceptable perception of bulk, apart from being an inconsistent and clumsy feature of the design. I see no valid reason why a consistent setback to the rear of the building should not be maintained. Even though Mr Baker resisted changes to Level 4 because it would necessitate a redesign of this level; I do not accept this to be a reasonable basis to avoid the amendments suggested in the previous paragraphs, particularly given that it will also result in a reduction in the floor area and consequently provide a building that is closer to compliance with the FSR requirement. 22 I am also satisfied that the Exhibit J satisfactorily address the concerns raised by the council's experts in relation to the balcony facades and the entry to Lobby 2. Front setback/amenity impacts The evidence 23 Mr Sanders states that the proposed 1.5 m setback will have an unacceptable amenity impact on the use of the 4 bedrooms associated with the three ground floor units by way of the likely noise generated by pedestrians and vehicles in Lamrock Avenue. Mr Minto states that there are no significant impacts from the 1.5 m setback as residents will be aware of their proximity to the street boundary and the potential exposure to the surrounding street activity. Findings 24 On this issue, I am satisfied that the proximity of the bedrooms of the three ground floor units, while not optimal, is not a matter that would warrant the amendment or refusal of the development application. The Lamrock Avenue frontage is generally south facing and would provide little if any solar access to this level of the building if used for living areas rather than bedrooms. Given that the preferred position of the council staff was that the site not contain any commercial activities because of the potential attraction of patrons from Campbell Parade (Exhibit 5, p2), I accept that the proposal is adequate given the proposed fencing comprising a 1.2 m high rendered wall with 400 mm of obscure toughened glass and the marginal mitigation of any noise if the setback was increased to 3 m, as suggested by Mr Sanders. 25 While not specifying a street setback, I note that the Code (at p 77) encourages ground floor apartments because they "provide opportunities for the apartment building and its landscaping to respond to the streetscape and the public domain at the pedestrian scale". Rear setback/ solar access The evidence 26 Mr Sanders states the shadow diagrams are insufficient for a proper assessment to be made of the proposed development. The diagrams indicate there would be a sub-standard level of amenity for the lowest units as there is little solar penetration at this level because of the limited rear setback. A greater setback is required from the rear boundary to provide appropriate levels of solar access. Based on the solar penetration diagrams, a setback of 6 m would be the minimum required. This needs to be compared to be setback that ranges from 5.25 m to 4.46 m. 27 Ms Morrish agrees with Mr Sanders that the shadow diagrams provided by the applicant are inadequate. The solar access diagrams show only the condition at midday in section and to no other times. The diagrams also do not demonstrate the extent of shadows on windows cast by existing development in midwinter. The solar access diagrams indicate that at midday in midwinter, the ground floor units and their private open space will be in shade with no solar access. She states that the proposal will not provide a reasonable standard of amenity or satisfy the requirements of the Code. In her opinion, a minimum setback of 6 m to 7 m should be provided. 28 Ms Morrish also states that the adjoining building to the north that influences the solar access is not developed to the potential available under LEP 1996 and DCP 2006. If the adjoining site were developed in accordance with the requirements in these plans, there would be a very poor outcome and amenity for the future residents of the site. 29 Mr Minto acknowledges that sunlight will not penetrate into the internal areas of the ground floor units. In his opinion, the rear ground floor courtyards, while not receiving direct sunlight in winter, do receive generous amounts of daylight and reflected light and will, in his opinion, have appropriate amenity. In accepting that the solar access to the ground floor units is not ideal, Mr Minto states that this is offset by the proximity of the site to Bondi Beach and its associated open space areas which would most likely be preferred by occupants of the dwellings for areas to enjoy solar access. 30 Mr Baker states that even with the increase in the rear setback suggested by Ms Morrish and Mr Sanders; this setback would not significantly alter the amenity and sunlight/daylight access to the north facing habitable rooms of the proposal. He notes that any attempt to understand the complete solar access performance of the proposals north facade cannot be understood without a complete computer analysis however he is satisfied that the setback of the rear wall is adequate to ensure satisfactory sunlight and daylight to the habitable rooms on the north side of the building. Currently, sunlight will strike the majority of the northern facade of the proposed building in midwinter and reflected light will illuminate the courtyard and rooms at ground level. 31 He rejects the conclusions of Mr Morrish regarding the potential effect of the redevelopment of the adjoining site and states that if a redevelopment included residential units, then appropriate setbacks would be provided. It is customary practice to require that the residential component of any new development, where it adjoins existing residential development, should be set back half the Code building separation distance or a similar setback to the existing adjoining building. Findings 32 The Code provides a Rule of Thumb for daylight access that states: Living rooms and private open spaces for at least 70% of apartments in a development should receive a minimum of three hours direct sunlight between 9 a.m. and 3 p.m. in midwinter, in dense urban areas a minimum two hours may be acceptable. 33 To satisfy the Rule of Thumb, the living rooms and private open spaces areas of at least 12 units should receive a minimum of two hours direct sunlight between 9 a.m. and 3 p.m. in midwinter. There was agreement that the proposal did not satisfy this requirement as the units on the ground level and the units on Level 1 (7 units) would not receive the required amount of direct sunlight, principally because of the existing building to the north. The solar access penetration diagrams provided by the applicant indicate solar access is available to Levels 2, 3 and 4 (10 units) although these diagrams do not identify the extent of solar penetration to each unit. 34 In most instances, I would accept that more detailed solar access diagrams should be provided however in this case I am satisfied that the limited information provided by the applicant is sufficient for a number of reasons. First, the site is orientated so that the rear elevation achieves the maximum amount of solar access with its generally north orientation. I note that amendments to the plans have relocated the living rooms to this elevation in place of bedrooms. Second, the rear setback of 5.25 m is reasonable in the circumstances, given the general compliance with the height, FSR and street setback requirements. The suggestion that the setback is reduced to 4.46 m for part of the property boundary is technically correct however this area is a Right of Way and as such no building can be erected on this area, so for the purposes of assessing solar access, a setback of 5.25 m is appropriate. Third, an increased rear setback to around 6 m will provide only minimal additional solar access to the units on the ground level and Level 1. Fourth, any reliance on a potential building form on the adjoining property is premature given that there was no evidence to suggest that a redevelopment of the adjoining site was being contemplated. I agree with Mr Baker that in the event the adjoining site is redeveloped for residential purposes it would be reasonable to assume that similar setbacks to that proposed in this application would be required. Fifth, the proposed development seeks to maximise the amount of solar access to the units through the use of full height glass walls in the north elevation. Sixth, there is some merit in the evidence of Mr Minto where he states that the proximity to Bondi Beach and the adjoining open space areas go some way to addressing the issue of solar access for the proposal. In my view, this evidence supports the proposed development but would not be a reason by itself for the provision of inadequate solar access to the units particularly through poor design. 35 For these reasons, the non-compliance with the Rule of Thumb for daylight access would not be a reason to refuse the application. Overlooking of adjoining balconies 36 The Exhibit J plans provide for the replacement of the clear glass with frosted fixed glass for a distance of around 1.8 m for the bedrooms on Levels 1, 2 and 3 and the kitchen on Level 4 adjoining the access lane and the balconies of the property to the east. 37 The effect of the frosted fixed glass is to increase the distance between a viewing location in the proposed building to the balconies on the adjoining property. For Levels 1, 2 and 3, the distance to the adjoining balconies is around 7 m measured in an arc from perpendicular from the viewing location in the proposed building to around 45 degrees from the same viewing location. Further to the north, the separation distance increases between the proposed building and the existing balconies. 38 Clause 5 .5.1 in DCP 2006 provides objectives for visual privacy. These are: o To provide reasonable levels of privacy externally and internally, during the day and at night o To maximise outlook and views from principal rooms and private open space without compromising visual privacy. 39 Given the relatively dense urban environment of the site and the surrounding area, I am satisfied that the separation is adequate and that the proposed development satisfies the objectives in cl 5.5.1. Deep soil landscaping 40 The Exhibit J plans provide for the minor modification of the basement car parking area to provide additional small opportunities for deep soil planting. The Exhibit J plans also provide for planter areas to link the deep soil areas to provide a band of landscaping along the northern boundary around 1 m in width. 41 While the additional area is not significant, it nonetheless provides some additional opportunity for deep soil planting and the landscaping of the northern boundary. In my view, the provision of canopy trees is not a significant matter in these proceedings because of the commercial zoning of the site and also the proximity of Bondi Beach and its associated recreational areas. I am satisfied that the proposed landscaping along the northern boundary will provide a reasonable level of landscaping for the ground floor units and some limited screening with a maturity of landscaping. 42 For these reasons, the absence of areas for deep soil planting is not a matter that would warrant the refusal of the development application, in this case. Balcony width 43 The balconies provided for the units on Levels 1, 2 and 3 at the Lamrock Ave frontage provide for a width of around 1.7 m. Mr Sanders and Ms Morrish maintained that the balconies should have a minimum width of 2 m, consistent with the Rule of Thumb in the Code. They state that the 2 m minimum width can be easily achieved by indenting the balcony into the proposed living areas by around 300 mm. 44 On this matter I agree with Mr Sanders and Ms Morrish. The Code provides that a 2 m balcony width will only comfortably provide a table and two chairs. In my view, a table and two chairs would be a minimum for the proposed balconies, particularly in the absence of any evidence to support a narrower width balcony. Conditions 45 The only condition in dispute is condition 39. This condition states: 39. LOSS OF CAR PARK CONTRIBUTION The construction of the vehicle crossing results in the loss of one parking meter space. The applicant/owner is to compensate council for the loss of the space in accordance with the Councils Plan of Management. A contribution of $32,448 is to be paid prior to the issue of the Construction Certificate. 46 The councils submits that as the proposed development requires the loss of an existing metered space in Lamrock Avenue for access to the basement car park, then the councils Fees and Charges for 2010/2011 requires the payment of a fee of $33,746. The applicant opposes the condition on the basis that 16 car parking spaces are being provided whereas the existing residential flat building on the site contains no parking. 47 On this condition, I accept the submissions of the applicant and find that condition 39 can be deleted. While a car parking space will be lost in Lamrock Avenue, there is a net benefit of 15 car parking spaces created by the proposed development. In practical terms, the on street car parking for cars associated with the occupants of the site can now be accommodated in the basement car park thereby providing additional spaces for other visitors or residents of the area. 48 Based on the findings in this judgment, the draft conditions of the council will need to be amended to provide for: o the inclusion of the plans in Exhibit J, o the 1 m setback for Level 4 along the eastern boundary adjoining the access way to the adjoining property, o the deletion of cantilevered balconies on the northern elevation of Level 4, o the increase in the width of the balconies by Levels 1, 2 and 3 to 2 m by indenting the balconies into the living areas of the units, and o the deletion of condition 39. Orders 49 On filing of the amended conditions as set out in par 42, the Orders of the Court will be: 1. The appeal is upheld. 2. DA 680/2009 for the demolition of an existing building and the construction of a five-storey residential flat building at is1-1A Lamrock Avenue, Bondi Beach is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and J. ___________ 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.