Land and Environment Court of New South Wales CITATION : Inphotek Pty Ltd v City of Sydney Council [2008] NSWLEC 1376 APPLICANT Inphotek Pty Ltd PARTIES : RESPONDENT City of Sydney Council FILE NUMBER(S) : 10434 of 2008 CORAM: Hussey C KEY ISSUES: Development Application :- Roof top unit, excessive height/FSR, impact on amenity. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 CASES CITED: Veloshin v Randwick Council [2007] NSWLEC 428 DATES OF HEARING: 22/08/2008 DATE OF JUDGMENT: 18 September 2008 APPLICANT Ms H. Irish, barrister Instructed by Mr V. Conomos LEGAL REPRESENTATIVES: of Pikes Lawyers RESPONDENT Mr S. Kondilios, solicitor of Maddocks Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 18 September 2008 10434 of 2008 Inphotek Pty Ltd v City of Sydney Council JUDGMENT Background 1 This appeal was lodged against council's refusal of a development application for alterations to an existing 3-storey commercial building for the addition of 2 x 3 bedroom residential units on the rooftop level. The building is located at 10 James Street, Waterloo. The application was subsequently amended seeking consent for a single 3 bedroom unit. 2 The neighbouring building to the north (Soho) comprises a mix of commercial units and residential units at the upper levels. There are other mixed-use buildings neighbouring the property. 3 Previously in July 2005, consent was granted for alterations and additions to the existing 3-storey commercial premises, including one new commercial floor, internal fit-out and refurbishment of the front façade over a 2-level basement carpark. The total height of this development, with the new 4th floor is in the order of 13.3m. A number of s96 modifications have been approved, resulting in a FSR of 2.91:1. 4 The issues raised for the appeal are summarised as: - Whether the inclusion of the new unit represents an appropriate mix of uses - Excessive height and scale, FSR and inadequate boundary setbacks. - Amenity impacts on adjoining properties arising from the building separation. - Impacts on views and outlook. The Site 5 The site is situated on the eastern side of James Street, which is a 2-way L-shaped no-through public road. It is rhomboid in shape with a total area of 708 sq m. 6 The site generally slopes to the southwest. The James Street boundary is approximately 3.4m lower than the level of the rear boundary and the southern boundary is approximately 1.2m lower than the northern boundary. 7 The adjoining site to the north contains a mixed-use development (The Soho), with residential units on the upper level adjacent to the proposal. The proposal 8 The amended proposal is to add 1x3-bedroom unit at the rooftop level. This 4th floor level unit contains 3 bedrooms, study, kitchen and living areas. It is accessed via a lift connected to the basement garage and ground floor lobby. The living room wall is effectively setback 6m from its boundary and 9m from the neighbouring Soho building. 9 The proposal incorporates substantial mounding and landscape plantings on the rooftop. Planning Controls 10 South Sydney LEP 1998. Under this LEP the site is in the Zone No 10 (c) - Mixed Uses "C" Zone and the development is permissible with consent. It contains the following relevant cl 21C (1) objectives: (a) to promote mixed use development in the Green Square Centre by encouraging urban housing in conjunction with appropriate business activities which contribute to economic growth and employment opportunities, (e) to minimise any adverse impact, including social impact, on residential amenity by devising appropriate design criteria and applying specific impact mitigation requirements by the use of development control plans, (g) to ensure that development contributes to a sustainable, vibrant community, and reflects equal and integrated consideration of social, economic and environmental design issues. 11 Clause 27A specifies the vision for Green Square. In sub-section 2, there are 4 key concepts, of which the following is relevant: (c) Interdependency This applies to the need for compatibility between land uses, to the high quality urban design response of buildings to public spaces, the interdependency of the social and physical environment, and the relationship of the Green Square area to the City South Region. 12 Clause 27B refers to the planning principles set out in Schedule 4, that are required to be taken into consideration. Clause 28 details the built environment design principles to be considered. 13 South Sydney DCP 1997. The relevant environmental design criteria is contained in Part E as follows: - Section 2.2 deals with FSR, where the objective of new development is to ensure its intensity respects and reflects the overall built form and does not detrimentally affect the amenity of the area. - Section 2.3 contains the height and scale controls with the objectives to ensure that buildings; o are appropriate in scale, compatible and complementary with areas of townscape significance, the site and its context, o do not dominate and overshadow the Public Domain, o achieve high environmental amenity. - Section 2.4 contains the setback controls, wherein the objectives are to encourage setbacks that: o Provide adequate separation between buildings and open spaces. o Complement the streetscape and assist in the integration of new development into the streetscape. o Protect adjoining buildings from overlooking. o Protect and enhance the amenity of public spaces. The evidence 14 Detailed evidence was presented by Ms S Cheng, specialist planner with council and Mr J Lidis, consulting planner for the applicant. An objection was made regarding traffic impacts. A further objection was made by the owner of the neighbouring Unit 68 – Soho, regarding loss of outlook and amenity arising from the new unit. 15 I note that the initial development application was for 2x 3 bedroom units at the roof top level. However after discussions between the parties, the applicant amended the proposal to the 1x 3 bedroom unit. Consequently I deal with the merit issues on the following basis. Mix of uses 16 It is apparent that the controls encourage a mix of development in this zone in Green Square. In particular the Schedule 4 planning principles provide for the integration of residential uses with other commercial uses and the urban form principles are for building form to be articulated in both height and mass to provide interest. The economic and community life principles encourage a variety of housing (including affordable housing) to accommodate a range of income groups and social diversity, increase housing choice and flexibility, and encourage employment-based activities and contribute to the creation of a range of precincts with character. 17 Accordingly, I am satisfied that the proposed rooftop residence generally satisfies these principles, subject to reasonable compliance with the associated DCP performance criteria. Insofar as the building form and appearance is to maintain the scale and be compatible with the immediate context and architectural character of the area, I understand there is no substantive objection to the appearance of the proposal from the ground level. The setbacks of the single unit result in it being largely indiscernible from ground level, due in part to the recessive location of the site. 18 In opposing the proposal, Ms Cheng says that there is likely to be an unsatisfactory level of amenity due to the unit residents being required to share the common areas with the commercial tenants, particularly in business hours. This problem is compounded by the lack of a legible circulation system that encourages interaction and recognition between residents. 19 Against this, Mr Lidis says that the single residential unit is unlikely to cause potential land use and security conflicts in this relatively small building. He says these can be addressed by the provision of directional signage for users and visitors to minimise conflicts and the use of keycard security should control access to the building. 20 In my assessment of this issue, I am satisfied that the inclusion of a single rooftop unit generally satisfies the controls, which encourage a mix of building types to allow accommodation choice. Whilst it will offer a different level of amenity to a predominantly residential complex, nevertheless I am satisfied a reasonable level of amenity can be achieved by the measures suggested by Mr Lidis. 21 As the commercial component has been completed, the subsequent level of amenity will be readily assessable by future residents and provide some choice in this mixed-use zone. In any case, it appears that there could be opportunities to use the unit in conjunction with one or more of the commercial tenancies. Therefore I do not consider the application should be refused on the grounds of unsatisfactory mix of uses. Height 22 This issue arises because the rooftop unit results in a 3m exceedance of the 12m height control for this precinct. However. The controls allow some additional roof space if it is contained in a 36o attic. 23 Mr Lidis supports the variation in the circumstances because he considers it is in context with the existing and approved development height and scale of adjacent buildings. Also, because it does not have any demonstrable impacts in terms of bulk, overbearing, privacy or loss of outlook. He says the proposal is consistent with the planning principle in Veloshin v Randwick Council. 24 However Ms Cheng maintains that there should be adherence to the height control because matching neighbouring buildings is not a sound reason to allow significant variations, as this leads to amenity impacts and some loss of legibility of the local topography. Her main concern is with the loss of outlook from Unit 68 – Soho, due to the positioning of the additional level of the unit. 25 From my assessment of the evidence, I am satisfied to rely on Mr Lidis opinion that the proposal satisfies the DCP height and scale performance criteria. It is consistent with the predominant height and scale of adjoining buildings and does not cause any significant loss of amenity to adjacent buildings. Setbacks 26 There are a number of setback controls, whose objective is to influence the form and amenity impacts from development. In this case, the critical setback concern is along the subject properties northern boundary, adjacent to the Soho. The proposed setback from the wall of the living room to the property boundary is 6m. There is further setback of 3m to the Soho building. 27 In this regard, Ms Cheng supports the objection from the owner of Unit 68, that the separation is inadequate, particularly taking into account the cumulative effect of the exceedance of the height and bulk controls. However Mr Lidis says this separation is adequate. 28 From my site observations, the internal building layout of Unit 68 is not primarily to the south and towards the subject property. Whilst the living room opens onto the balcony adjacent to the site, this is a relatively narrow passageway to the main outdoor area on the western elevation. This area being much wider allowing placement of tables and chairs for outdoor entertaining. Taking into account the proposed site landscaping protects to a reasonable extent the loss of amenity, I am satisfied to rely on Mr Lidis's opinion that the separation is adequate and s 2.4 objectives are reasonably satisfied. FSR 29 The floor space ratio control in s 2.2 of the DCP is to ensure that the intensity of the floor space of new developments respects and reflects the overall built form and does not detrimentally affect the amenity of the area. The base FSR is 1.5:1 and a bonus of 0.5:1 is permissible based on public domain improvements accepted by council. 30 With the site area of 708 sq m, the approved FSR is 2.91:1. As the new unit has an additional floor area of 206 sq m, the proposed FSR is 3.2:1. According to Mr Lidis, the FSR of the proposal is consistent with adjoining buildings and as the building is well setback and recessive, it is acceptable in the proposed context. 31 In determining this issue, I have taken into account that the initial consent allowed an exceedance of the FSR control. On the basis that the variation was warranted in the subject circumstances, I am now satisfied to rely on Mr Lidis's opinion that the further incremental increase in floor space in the subject context satisfies the objectives of the control. Public interest 32 An objection was made from the owner of Unit 68 – Soho that the proposed unit will reduce privacy and outlook amenity of No 68. Also, it will reduce the value of the property. In considering this objection, I note that the unit now achieves a reasonable separation of 9m from No 68, which is reasonable in the context of medium density development. Whilst the proposed structure will take out some distant vegetation views, the proposed intervening mounding and landscaping will introduce an attractive 'green rooftop' outlook, rather than the vast hard surface roof areas. I rely on the opinion of Mr Lidis, that the change in outlook from No 68 is not sufficient to warrant rejection of the proposal 33 No substantive evidence was presented regarding loss of value of Unit 68. Planning Principle, height, bulk and scale 34 The planners referred to this planning principle being relevant in this matter for assessing the acceptability of the height, bulk and scale of a proposed development, as set out by Roseth SC in Veloshin v Randwick Council [2007] NSWLEC 428. The Senior Commissioner said: - The appropriateness of a proposal's height and bulk is most usefully assessed against planning controls related to these attributes, such as maximum height, floor space ratio, site coverage and setbacks. The questions to be asked are: Are the impacts consistent with impacts that may be reasonably expected under the controls? (For complying proposals this question relates to whether the massing has been distributed so as to reduce impacts, rather than to increase them. For non-complying proposals the question cannot be answered unless the difference between the impacts of a complying and a non-complying development is quantified.) How does the proposal's height and bulk relate to the height and bulk desired under the relevant controls? - Where the planning controls are aimed at preserving the existing, character of an area, additional questions to be asked are: Does the area have a predominant existing character and are the planning controls likely to maintain it? Does the proposal fit into the existing character of the area? - Where the planning controls are aimed at creating a new character, the existing character is of less relevance. The controls then indicate the nature of the new character desired. The question to be asked is: Is the proposal consistent with the bulk and character intended by the planning controls? - Where there is an absence of planning controls related to bulk and character, the assessment of a proposal should be based on whether the planning intent for the area appears to be the preservation of the existing character or the creation of a new one. In cases where even this question cannot be answered, reliance on subjective opinion cannot be avoided. The question then is: Does the proposal look appropriate in its context? Note: the above questions are not exhaustive; other questions may also be asked. 33. The above principles are supplementary to, and consistent with, the principles established in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. 35 Adopting and considering those questions in the present case, I note that whilst the height and scale of the roof top unit exceeds the controls, nevertheless these controls allow some discretion in their application and that has occurred with the existing consent. Consequently council has determined that a reasonable level of outcome is achieved with these non-compliances. In my assessment, the incremental change arising from the proposal is to change and marginally reduce the outlook from Unit 68. 36 On balance, my assessment is that the proposal has a satisfactory separation to Unit 68 and based on Mr Lidis evidence that the design is also a satisfactory response to the relatively secluded lot position and compatible with the neighbouring buildings, the impact on outlook is not of sufficient magnitude to warrant refusal. Conclusion 37 Having considered the evidence, the submissions and undertaken a view, I am satisfied this proposal merits conditional consent. One of the fundamental objectives of this mixed-use zone is to provide for a variety of accommodation choice and the proposal achieves this by does offering opportunities for its use in conjunction with the commercial units. 38 Whilst it exceeds the numeric height and FSR controls, there is a relatively minor incremental amenity impact arising from the unit, in the overall development context of this neighbourhood. The amended location of the unit with satisfactory separation from Unit 68, when considered with the proposed landscaping results in an acceptable level of impacts in the area so as to merit consent. It appears that there is likely to be some incremental benefit in outlook from Unit 68 with the extensive landscaping, which will minimise the foreground views onto built structures and extensive roofing elements. 39 In the ultimate, I am satisfied this proposal is of appropriate height and scale to generally satisfy the Green Square vision. 40 With regard to the draft conditions, I am satisfied the applicant's objection to condition 2 requiring design amendments to increase the setbacks should be allowed. Also to condition 3, as the planning controls do not limit roof top housing to caretaker use only. These conditions are deleted. Court Orders 1 The appeal is upheld. 2 Development consent is granted to D/2007/00720 for the construction of a rooftop unit at 10 James Street, Waterloo subject to the conditions in Annexure A. 3 The exhibits may be returned except 2, 4, 7 and E. ___________________ R Hussey 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.