Land and Environment Court of New South Wales CITATION : Jackson Teece v Waverley Council [2007] NSWLEC 69 Applicant: Jackson Teece Architects PARTIES : Respondent: Waverley Council FILE NUMBER(S) : 10879 of 2006 CORAM: Roseth SC KEY ISSUES: Development Application :- performance-based planning instruments DATES OF HEARING: 07/02/2007 and 08/02/2007 DATE OF JUDGMENT: 15 February 2007 Applicant: LEGAL REPRESENTATIVES: Ms S Duggan, barrister instructed by Mr V Conomos of Pike Pike & Fenwick Respondent: Mr S Brockwell, barrister instructed by Ms E Hillier of Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 15 February 2007 10879 of 2006 Jackson Teece Architects v Waverley Council JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal of a development application to demolish the existing police station and construct a four-storey residential flat building containing a shop and ten apartments on lot 1 DP 15662, known as 30A Hastings Parade, Bondi Beach. The site 2 The site is on the northwest corner of Hastings Parade and Wairoa Avenue. Its frontage to Hastings Parade is 15m, to Wairoa Avenue 31m and its area is 462m2. A single-storey police station now stands on the site. 3 The development on Hastings Parade west of the site, though zoned 2(c), is mainly one and two-storey houses. On the other side of the street is Wairoa Reserve. On the northeast corner of Hastings Parade is a three-storey apartment buildings above ground-floor parking. Despite the existence of this building, the area east of the site is zoned 2(a). Adjoining to the north is a two-storey apartment building. The proposal and its history 4 The applicant proposes to demolish the existing police station on the site and to construct a four-storey residential flat building and a shop above parking. 5 The applicant lodged the development application in August 2006. Following notification, the council received eight objections. The applicant lodged the appeal in September 2006 against deemed refusal. At the time of the hearing the council had not made a decision. Relevant planning controls 6 The Waverley Local Environmental Plan 1996 (the LEP) zones the site 2(c1), a zone that is described as Residential – Medium to High Density. The Multi Unit Development Control Plan 1 (DCP 1) establishes objectives, design criteria and design solutions for increased density residential areas. Development Control Plan 14 Land Use and Transport (DCP 4) establishes parking standards. The issues 7 The council submitted a Statement of Issues containing six issues. These were discussed during the hearing. The following emerged as the main issues: · Bulk and scale of the proposal, particularly its presentation to Wairoa Avenue. · Impact on neighbours. · Inadequate parking. · Lack of solar access to apartments. The objectors' concerns 8 The Court heard the evidence of several objectors at the site. The main concern was with the bulk of the proposal in relation to its site. Given the findings of this judgment, which agree with these concerns, it is not necessary to list the particular concerns of individual objectors. Bulk and scale 9 The planning experts were Mr William Gawne, for the council, and Mr Anthony Betros, for the applicant, both town planners. They agreed that the proposal did not comply with the Design Solutions (in effect, numerical requirements) of DCP 1; however, the extent of non-compliance was in dispute. In order to extend the maximum fairness to the applicant, I have adopted Mr Betros' evidence on non-compliance. Density 10 The Design Solution for density in DCP 1 establishes a FSR of 0.9:1 for the 2(c1) zone. The proposal's FSR is 1.37:1. 11 The applicant submits that the Court should consider the controls in DCP 1 in the context that it puts into practice a Performance Based system, which, in the words of the DCP, provides an alternative to prescriptive regulation. To achieve this, the DCP establishes Objectives, Variation Criteria and Design Solutions for each type of control. 12 The objective for density control is to control the size, bulk and scale of development to reflect the existing and desired future character of the area. The area's existing character is mainly detached housing interspersed with a few apartment buildings. Given that the area is zoned for medium to high density, it is the future character that should be taken into account. I assume that the desired future character will be one that arises from a density of FSR 0.9:1. (The applicant submits that this is the wrong way to go about the task. I do not accept this. The Court must assume that the council will uphold the DCP in determining future applications.) The proposal's FSR is 50% more than this. The proposal is therefore inconsistent with the desired future character. 13 The Variation Criteria for density suggest that the only legitimate variation to the permissible FSR is by the addition of affordable housing, which does not apply in this proposal. The Design Solutions reiterate this. My reading of the DCP suggests that its makers did not wish to extend flexibility to the Design Solutions for FSR. Rather, they expected that development would comply with the maximum FSR of 0.9:1. If this is so, it is a sound approach to planning control. 14 Before I come to a conclusion on the proposal's FSR, I must turn to Mr Betros' justification of the additional floor space, which is based on the fact that the site is a corner site. He conducted a "corner analysis", ie an analysis of buildings in the area, which are on corner sites. He concluded that many of these corner buildings were big. I note that he included among his examples buildings outside the visual catchment of the site, commercial buildings, public buildings, pubs and apartment buildings of exceptional ugliness. Some of his examples are more an argument against large buildings on corners than for them. 15 I hasten to add that the emphasis-on-the-corner theory is a widely accepted theory of urban design subscribed to by many urban designers. However, a building can emphasise a corner without needing additional floor space, for example by distributing its own massing towards the corner, by turrets, vertical lines and other design devices. Where a claim is made for floor space additional to that permissible on the grounds of the emphasis-on-the-corner theory, it is hard to escape the suspicion that the real reason is profit motive rather than urban design. 16 In my opinion, the FSR of this building is inconsistent with the Objective, Variation Criteria as well as Design Solutions for density in DCP 1. The proposal's excessive FSR is a sufficient reason for refusal. Front setbacks 17 The objectives for setbacks in DCP 1 are: · To permit flexibility in the siting of buildings. · To reduce the impact of development on adjoining land. · To ensure adequate separation between buildings for landscaping, open space, solar access and privacy. · To integrate development within the existing streetscape. 18 Clearly, only the last objective applies to front setbacks. DCP1 establishes as a control 6m-front setbacks for 2(c1) zones. The experts agreed that the setback from Hastings Parade, though less than 6m, was appropriate. In Mr Gawne's opinion, the average setback of existing buildings from Wairoa Avenue was 3.5-4m, so the proposal should have a similar setback. The proposal's setback is 3m, which is close to the average setback. However, eight balconies project into this setback within 300mm of Wairoa Avenue. DCP 1 lists the kind of projections that are permitted into setbacks, being roof eaves, sun-hoods, chimneys, meter boxes and the like. It does not mention balconies. The projecting balconies are thus inconsistent with the DCP. 19 I do not rely solely on DCP 1 to conclude that the projecting balconies are inappropriate. They constitute inappropriate urban design in a street in which other residential buildings are set back from the street. The balconies are also inappropriate housing design because they come so close to the street that the occupants can shake hands with passers-by. It seems to me that a requirement for a setback of 3-4m for a four-storey apartment building in a suburban street is reasonable and should be fully complied with. 20 In my opinion, the inadequate setback of the balconies from Wairoa Street is a sufficient reason for refusal. Side and rear setbacks 21 With a corner site it is difficult to decide which setback is rear and which is side. Since the side setback requirement in DCP 1 is less onerous, I accept that the northern and western setbacks are side setbacks. For zone 2(c1) DCP 1 establishes a control of 3m plus one-quarter of the height above 3m. For this building the required setback is 4.5m. The proposal's setback to the west (30 Hastings Parade) is 3m, though the external staircases are only 1.8m from the common boundary. To the north (63 Wairoa Avenue) the setback is 2.5m. 22 DCP 1 allows a variation of setbacks provided there is no adverse impact on neighbours. Mr Gawne says that the open staircases will adversely impact on No 30 Hastings Parade. As far as I understand his evidence, he would accept a reduced setback of 3m, provided the staircases did not intrude into this space. I accept his evidence. The proposal does not comply. 23 Notwithstanding the above, I do not think that the setback controls of DCP 1 need to be applied to the site strictly. If they were strictly applied, development would not be possible. The question is how much variation is appropriate? The impact on the existing house at No 30 is only one consideration; the impact on the development potential of No 30 is another. It would be unfair to constrain that development potential by allowing a setback on the subject site that could not be replicated in a redevelopment of No 30. Separation distances 24 DCP 1 establishes a desirable separation distance of 9m between habitable rooms and 6m between non-habitable rooms. The proposal achieves a separation of 4m from its neighbours. A separation of 6m would be very hard to achieve on this site. Moreover, it must be said that in Bondi, separation distances of less than 6m are not unusual. It seems to me that somewhat more than the separation achieved by this proposal and somewhat less than that required in DCP 1 would be appropriate. Height 25 DCP 1 establishes a maximum wall height of 10m. The proposal exceeds that height, though the wall of the top storey is recessed. The applicant argues that the bulk of the building is not greatly different from a complying building that has a substantial sloping roof. To the extent that one can consider height by itself, this is probably not the worst feature of the proposal. A building of the same height with increased setbacks and complying FSR may be acceptable. Site coverage 26 The proposal's site coverage complies with the controls in DCP 1. Impact on neighbours 27 The proposal's impact on neighbours was discussed under Side setbacks. A small increase in setbacks and the removal of the open stairs would probably render the impact acceptable. Parking 28 According to Mr Betros, DCP 4 requires six car spaces and the proposal provides four. In my opinion, this is not a reason for refusal. I note that the council does not issue parking permits for new development, so it is likely that people living in this building (if it were approved and built) would not own cars. Given the current concern with climate change and the increasing emphasis on the use of public transport, I would be reluctant to refuse an application because it is deficient in parking, so long as the deficiency does not cause other people inconvenience. Solar access to apartments 29 At best four, and at worst three of the ten apartments achieve two hours of sunlight in mid-winter. This is a very poor performance. If the total number of apartments were reduced (as indeed it would need to be for other reasons), the number of apartments with good solar access would not decrease proportionately, so the solar performance of the project would improve. Previous Court judgment and Design Review Panel assessment 30 A previous proposal came to this Court and was dismissed by Tuor C (Jackson Teece Chesterman and Willis v Waverley Council [2006] NSWLEC 460). Commissioner Tuor found that "the combined effect of the non-compliance with the controls generates a development that is too big for its site and its context" [51]. The proposal before me has a slightly higher FSR than the proposal before her. The only substantial change is that the size of the balconies has been reduced and, instead of aligning with Wairoa Avenue, the balconies are now 300mm clear of it. 31 It needs to be mentioned that the council's Design Review Panel expressed its satisfaction with the proposal. I have read the Panel's report and, because of its wrong characterisation of the surroundings and its making light of council's controls, I have placed little weight on its opinion. Conclusions 32 This proposal is too big for its site, as was the previous proposal before the Court. It comes too close to Wairoa Avenue, achieves poor solar access and impacts adversely on its western neighbour. The appeal is therefore dismissed. Orders 1. The appeal is dismissed. 2. Development application to demolish the existing police station and construct a four-storey residential flat building containing a shop and ten apartments on lot 1 DP 15662, known as 30A Hastings Parade, Bondi Beach 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.