Land and Environment Court of New South Wales CITATION : Yugaro Pty Limited v Waverley Council [2010] NSWLEC 1073 APPLICANT Yugaro Pty Limited PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10520 of 2009 CORAM: Murrell C KEY ISSUES: DEVELOPMENT APPLICATION :- residential flat building - impact on adjoining properties - outlook and solar access - impact on streetscape LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 DATES OF HEARING: 4 February 2010 and 9 February 2010 EX TEMPORE JUDGMENT DATE : 9 February 2010 APPLICANT Mr G Green (solicitor) SOLICITOR Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Staunton (barrister) SOLICITOR Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 9 February 2010 10520 of 2009 Yugaro Pty Limited v Waverley Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 The applicant in these proceedings is seeking consent for alterations to an existing terrace building and to construct an addition to the rear of the building. The proposal contains 14 residential units. The property is known as Nos. 184 - 86 Bronte Road, Charing Cross, Waverley. 2 By way of background, this S97 appeal under the Environmental Planning and Assessment Act 1979 commenced as a s34 conciliation conference on site under s 34 of the Land and Environment Court Act 1979. The parties agreed that conciliation in the circumstances of this case was not fruitful and that the Court should determine the matter under s 34(4) by way of arbitration. The matter proceeded to a Court hearing and the Court revisited the surrounding area. 3 The subject site contains a Victorian Italianate pair of terraces, and it is noted that they are not heritage items but they are within the Charing Cross conservation area. The site is some 725 square metres, 15.5 metres to Bronte Road and 14 metres to Short Street, with side boundaries in the vicinity of some 50 metres. The adjoining property to the south is No. 188 Bronte Road and is an inter-war three-storey residential flat building. 4 The area can be described as one of a mixture of not only uses but also building types including residential flat buildings and dwelling houses. The subject site has a street frontage to Bronte Road, the main street, and a boundary to a rear street, Short Street, whether that be a secondary access road or whether it is a laneway. 5 The respondent filed a Statement of Facts and Contentions and the issues can be broadly summarized as : visual bulk; loss of outlook; solar access; and the prosed development is not compatible with the surrounding area. 6 On my merits assessment I have determined that the development application should be dismissed because of its impacts on Short Street and that the proposed development at the upper levels would be a dominating element on Short Street. 7 The montages tendered show the adjoining warehouse building, which is some two storeys as a most prominent element in the photograph, however, the part that immediately adjoins the subject site is single storey with a parapet equating to a two-storey development. 8 I note that there are tall buildings in the street in that the school site opposite in Short Street has school premises of some five storeys in one portion. The main part opposite the subject site is a building of perhaps three but the equivalent of a four-storey building in terms of the height, but these elements are set back from Short Street itself. In the streetscape there are two storey elements on the boundary with nil setbacks as well as a number of single storey garages that are within the streetscape of Short Street. 9 Short Street itself has the purpose of serving mainly rear access to many of the residential properties, mixed use development along that section of the block that also has frontage to Bronte Road, as well as serving the school itself and other properties opposite. In my assessment the built form needs to pay respect, not necessarily in total height or in terms of setbacks, but there needs to be an appropriate presentation to Short Street. However, the setback of the proposed development together with its combination of the height would present as a very dominant element within Short Street, which is a narrow street. For the record as provided prior to judgment, it is noted that Short Street is some five metres in width, that is, the total width of the street itself, and the pavement is of a lesser dimension. It is noted that the street provides two-way access to the area. 10 The proposed development is for alterations and additions to the existing terrace dwellings that provide for a most attractive element to Bronte Road. There is no dispute that from a heritage point of view the proposed development will not have any adverse heritage impact and will continue to make, in its refurbished form, a positive contribution to the streetscape of Bronte Road. There is no question in issue here that the application has merit in this regard and the additions to the rear of the building will not be visible from Bronte Road. 11 It is interesting to note that the assessment of the development application by the experts was in many respects based upon the difference between the existing approval of 2004 and the current proposal, whether it be in terms of the statement of environmental effects that was submitted with the development application, or the assessment of the two experts who gave evidence in the proceedings, Mr Spiro Stavis, consultant town planner for the applicant, and Mr Stuart McDonald, consultant town planner for the council. 12 During the hearing I made comment as to whether the above approach is more appropriate to an assessment in terms of s 96 of the Environmental Planning and Assessment Act 1979, rather than a new development application that is the subject of this appeal. I acknowledge, however, that an applicant has a choice as to whether to make a s 96 application or whether to lodge a fresh development application. The parties stated that on the one hand, the proposal may not be substantially the same development in terms of a s96 modification application, and on the other hand if a s 96 application had been submitted, this would have triggered an increased s 94 contribution. These are not matters for me, but rather I must assess the development application before me under s 79C of the Act as a fresh development application. 13 Mr Stavis is of the opinion that the proposed development is appropriate, and, it is noted in the Statement of Environmental Effects, an issue that prompted the development application currently before the Court is the amendments to the council's planning regime. The amendment to the council's planning guidelines, being Amendment No. 4 to the Waverley Development Control Plan 2006 ("DCP"), include new provisions concerning setbacks and frontages to streets and laneways. 14 The subject site is zoned residential 2(c1) under the Waverley Local Environmental Plan 1996 ("the LEP") as amended, and the objectives of the zone are: "(a) to allow for a variety of medium and high density housing forms including boarding houses, dwelling houses, residential flat buildings, and (b) to maintain and improve the amenity of the locality ." 15 Other controls or guidelines are contained within the DCP. The Court must also have regard to the heritage provisions that are set out at cl 45. In this regard, the subject development site is within a conservation area and also within the vicinity of heritage items. As noted above I am satisfied on the basis of the heritage report that the proposed development is not contrary to the provisions of the LEP in this regard. 16 Amendment No. 4 to the DCP has been discussed at length between the planners in terms of the new controls and the intent of the controls. In many respects it is a performance-based DCP, and I am guided by Zhang v Canterbury City Council [2001] NSWCA 167 and one does not necessarily regard it as a straight jacket..I must have regard what the provisions or objectives are seeking to achieve and the context in my merits assessment. 17 In terms of the height, the objective is to ensure future development responds to the desired scale and character of the street and the local area. The proposed development at its maximum height is some 12.9 metres. The control provides for the maximum overall building height 12.5 metres. This exceedence in itself is not a matter that would warrant refusal but rather in my assessment the proximity of the increasing height with a minimal setback to Short Street. 18 There are also controls for external walls and generally the development is compliant. 19 There are also provisions relating to solar access. Solar access is the term applied to "the ability of a solar collector that is part of or situated on a dwelling or lot, including open space and clothes drying areas, to capture sunlight and take advantage of that energy to a reasonable level". Shadow diagrams for the winter solstice at 9am, 12noon and 3pm, were submitted with the development application, and two hours minimum solar access satisfies the council's controls at 21 June. As I stated, there was a great deal of discussion about the comparison of how much solar access is received by the proposal currently before the Court and that that was approved by the council. It is noted that certain units in the development at No. 188 Bronte Road benefit and certain units are disadvantaged by the current proposal. 20 There are further controls within the DCP that provide for guidelines on dual street frontages. That is, "sites with a dual street frontage including laneway frontages, are permitted a reduced setback to the secondary street or lane to reflect surrounding corner sites and to respond to reduced setbacks along laneways". Clearly there are reduced setbacks along Short Street, whether it be called a street or a laneway. I note many of the single storey garage elements have a nil setback. 21 There was a great deal of discussion about the floor space ratio ("FSR"). I note that the approved development is about 1.15:1 FSR, and the control provides for 0.9:1 FSR. The currently proposed development, which must be calculated on the basis of the controls in place, is 1.45:1 FSR under the LEP. Once again, it is not the FSR in itself but the positioning or the siting of the bulk to Short Street. Clearly one could see in the vicinity of the subject site that many developments are in excess of the 0.9:1 FSR, although many of these were erected prior to the adoption of the controls by the council. The adjoining property, No. 188 Bronte Road, is approximately 1.4:1 FSR and is a three-storey residential flat building. There are also other developments within the vicinity of similar density as well as a number of dwelling houses along this portion of Bronte Road that have their rear access to Short Street. 22 In terms of setbacks, it is noted that the objective is to establish desired spatial proportions to define street edges, achieving visual privacy, good quality entrances, and to ensure developments contribute to the landscape character. 23 The strategy for street setbacks states: "street setback must relate to the setback of surrounding buildings along the street" and "the alignment of building setbacks must be measured in a manner consistent with the surrounding pattern of development along the street". 24 The controls provide for "street setbacks must be consistent with prevailing setbacks along the street and the alignment of elements, where there is no predominant street setback, buildings are to be setback a minimum of six metres from the street". 25 The control for laneways states: "setbacks from laneways are determined by the building use ... For retail/commercial garage entries: zero setback for the first two storeys and a four metre setback for additional upper storeys." 26 The proposed development provides for a setback to the ground level garage/basement parking of 2.2 metres, for level one 800 millimetres, for level two 800 millimetres setback from the Short Street boundary and the roof over the third storey is some (depending upon Mr Stavis' or Mr McDonald's scaling of the plans) is 150 to 200 millimetres. In other words, the setback at the garage entry level to the rear lane is 2.2 metres, and in many respects that is greater or at least consistent with the setback in Short Street, however the building has a reduced setback to the upper levels. 27 Amendment No. 4 to the DCP now provides for pitched roof attics and the current new development application in many respects was attempting to respond to the new provisions within the DCP which allow for reduced setbacks and for a fourth floor attic level. 28 In my assessment I agree with Mr McDonald, that the cantilevering of the upper storeys to Short Street will be imposing and not consistent with the streetscape, or lane-scape. I recognise that this street is one that is basically a service laneway. Whether one categorises Short Street as a laneway, a secondary street or a street, is not the issue. In my merits assessment the proposed built form and bulk coming closer to Short Street as it rises as opposed to being set back further as it increases with height, is inappropriate in the context. The proposal must have regard to the urban design provisions of the State Environmental Planning Policy No. 65 for residential flat buildings. I must look at the context, the scale and the built form amongst the ten design principles that are contained within the SEPP No. 65. 29 My determinative reason for the refusal of the application is the bulk at the upper levels with a reduced setback from Short Street. While I consider that it is not necessary for a large setback to Short Street, at the same time the setback should have regard to the height and massing of the building and the proposed development seeks to have a reduced setback with increasing height. As such the resultant development at the upper levels will dominate the laneway. It is clear from the site inspection that in this street/laneway there is a nil setback for many of the single and two storey garage elements. The fact that this development has a 2.2 metre setback at the ground floor does not assist ameliorating the bulk to Short Street when the upper levels are cantilevered closer to the street. 30 As I stated, Mr Stavis is of the opinion that the proposed development fits within the streetscape and is appropriate. Clearly in this area higher density development is occurring, and the FSR control is not one that appears to be strictly complied with. At the same time, the positioning of the bulk of the FSR must be considered in the presentation of a development to the public domain. 31 The Court in its overall assessment must have regard to s 79C, which does not limit the assessment of a comparison of the approved development with the proposed development. 32 I note that in the council's assessment that there were amendments to the plans in 2004 and the council commented on the improved design, and this included certain setbacks to the rear. The note was "the amendments are deemed to satisfy the design requirements by the amendments sought to the rear and the setback. ...the rear setback has been increased." It would appear this was one of the issues at that time. 33 I was taken to the above report on behalf of the applicant for the FSR and in terms of the heritage. The council's assessment report further stated that: " the FSR variation to 1.1:5 this was considered appropriate given the retention of the existing front building facades and the now-acceptable building envelope, bulk floor space, the rear building setbacks and the number of affordable housing units. It should be noted that the site is located on the fringes of the Bondi Junction commercial area, has good access to transport and is considered an appropriate site for an increase in density. 34 At the same time I must have regard to the local context. This is not Bondi Junction, it has greater affinity with Charing Cross, and one must have regard not only to the important Bronte Road presentation but also the Short Street presentation. 35 I note Mr McDonald's opinion that the level of impact for the existing approved development is acceptable but the additional impacts of this current application, that arise from the increased building height and floor space, are not. He states that: "the approved development reasonably represents an acceptable scale and density as well as the highest and best use of the site.. (however) the additional building height, the attic fourth level, the rear extension, the walls of the second and third storey setback approximately 800 millimetres and the fourth level wall setback of 1.8, the overall increase in FSR resulting in additional impacts... are unreasonable given the extent of the non-compliance with the development controls". 36 In my merits assessment under s79C, the determinative reason for my refusal of this application is the presentation of the building with dominant upper levels to Short Street as the bulk of the building increases with its height. 37 Accordingly based on my assessment above the formal orders of the Court are: 1. The appeal in respect of the property known as Nos. 184-186 Bronte Road is dismissed. 2. The development application submitted to Waverley Council as amended and as shown in Exhibit B is refused development consent. 3. The exhibits except for A, B and 2 are returned to the parties. ___________________ J S Murrell 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.