Land and Environment Court of New South Wales CITATION : Veloshin v Randwick Council [2007] NSWLEC 428 Applicant: Anatol Veloshin & Michael Moses PARTIES : Respondent: Randwick City Council; FILE NUMBER(S) : 10095 of 2007 CORAM: Roseth SC KEY ISSUES: Development Application :- Planning principle:assessment of height, bulk and scale LEGISLATION CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 DATES OF HEARING: 03/04/2007 and 04/07/2007 DATE OF JUDGMENT: 13 July 2007 Applicant: LEGAL REPRESENTATIVES: Ms S Duggan. barrister instructed by Mr V Conomos, solicitor of Pike Pike & Fenwick Mr P McEwen SC instructed by Ms T Litt, solicitor of Shaw Reynolds Bowen & Gerathy JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 13 July 2007 10095 of 2007 Anatol Veloshin & Michael Moses v Randwick City Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Randwick City Council (the council) of a development application to demolish the existing development and erect a three to four-storey building containing two shops, eight one-bedroom and two studio apartments at 35-37 St Paul's Road, Randwick. At the conclusion of the hearing the applicant indicated that it was willing to delete a floor containing two studio apartments. Given that this change goes towards reducing the shortcomings of the proposal, I have assumed that the two studio apartments are removed and adjusted the evidence accordingly. The site 2 The site is on the northern side of St Paul's Street in "The Spot" commercial centre of Randwick. It is trapezoidal, with an area of 361m2. The rear boundary adjoins Aeolia Lane. The width at the lane is 7.9m. The existing building has a Floor Space Ratio (FSR) of 1.35:1 and contains two shops and two two-bedroom apartments above. The front façade to St Paul's Street is listed as a contributory item in the Conservation Area in which the site is located. 3 To the east the site adjoins the Ritz cinema, the central part of which is heritage listed. The section that adjoins the site is a new addition to the cinema and reaches the height of about 15m. Beyond the Ritz is a vacant site, which is part of Brigidene College and on which a proposal to erect a public car park for 156 cars has been approved. To the west the site adjoins 33A St Paul's Street, which is a building containing shops at ground floor and a dwelling at first floor level. Further to the west are similar buildings up to the corner of Aeolia Street. The corner site contains a new development of retailing and residential. On the other side of the lane is Brgidene College. 4 The Spot is a strip shopping centre of traditional appearance. Most of the buildings are two to three storeys. The Ritz cinema, which has been recently expanded, is the largest building in the centre. The proposal and its history 5 The applicant proposes to demolish the existing building on the site, with the exception of the St Paul's Street façade, which is retained for its contributory qualities to the Conservation Area. The applicant proposes to erect a new building behind this façade containing two shops, eight one-bedroom apartments, a courtyard and parking for four cars accessible from Aeolia Lane. The height of the (amended) proposal is less than 12m. The Floor Space Ratio (FSR) is 2.14:1. 6 The applicant lodged the development application in January 2006. Following notification, the council received eleven objections. The proposal went before the council's Urban Design Review Panel, which suggested design changes, though, on the whole, appears to have liked the proposal because it is well designed. The Panel accepted the density notwithstanding its non-compliance with council's controls. The Panel does not appear to have considered the issue of parking. 7 In October 2006 the council considered a planning report by its planning officers recommending refusal. The council accepted the recommendation and refused the application. The applicant lodged the appeal in February 2007. Relevant planning instruments and policies 8 Randwick Local Environmental Plan 1998 (the LEP) zones the site Local Business 3B. The LEP defines the surrounding area a heritage conservation area and lists the Ritz cinema as an item of heritage. The LEP establishes a maximum FSR of 1.5:1 for the site. The maximum height is 12m. 9 Development Control Plan 22 – The Spot and Surrounds applies. It contains mainly design guidelines and repeats the controls of the LEP. 10 Development Control Plan – Parking (the Parking DCP) establishes parking rates for various land uses. 11 State Environmental Planning Policy 1 – Development Standards (SEPP 1) provides for the variation of development standards. The applicant has lodged an Objection under this Policy to the FSR of 1.5:1. Matters in contention 12 The council lodged a Statement of Issues (now referred to as a Statement of Contentions) containing six matters in contention. These were discussed during the proceedings during which it emerged that the main matters in contention were: · Bulk and scale is excessive; the maximum FSR is exceeded and the Objection under SEPP 1 is not well founded. · The proposal does not provide for its parking needs on the site. · Concerns raised by the objectors. The objectors' evidence 13 Ms Adrianna Savva, who lives at 33A St Paul's Street adjoining the proposal to the west, told the Court that she was concerned about overlooking, overshadowing, a feeling of being hemmed in and a fear that her building will crack as a result of construction next door. 14 Since Ms Savva's living room faces towards the south, potential overshadowing would occur on the windows of two bedrooms. In mid-winter these windows are now in sunlight till about mid-day; as a result of the development they would be overshadowed till about 10 o'clock. (This is an educated guess since the information on overshadowing related to the proposal before it was amended reducing the height by 3m.) Clearly, this is not a major impact, though, of course, people who like to wake up to sunshine would notice the difference. The applicant provided no information on how much of the impact was due to those parts of the proposal that did not comply with the maximum FSR standard. 15 It appears that Ms Savva's privacy would actually improve as a result of the development. As concerns possible cracking of the walls of the building, the draft conditions contain a requirement for the applicant to undertake a dilapidation survey of No 33A. As concerns Ms Savva's fear of being hemmed in, the outlook from her windows and her garden would certainly be more restricted than it is now. How much of this is due to the component of the proposal that does not comply with the maximum FSR is not known. 16 The Court also heard the evidence of Mr Jack Ziade, the owner and director of the adjoining Ritz cinema, whose concern was that Aeolia Lane, to which his cinema had seven exits, would become blocked as a result of the proposal. While I understand these concerns, they do not justify refusal of the proposal. 17 Mr Jim Katehos, who is the owner of the new mixed development at the corner of Perouse Road and Aeolia Street, was concerned about insufficient parking in the proposal. He pointed out that his site was 690m2, and his development comprised two shops, eleven units and two basement level car parks for 23 vehicles. He believed that if he had to comply with the council's density control and parking code, so should the applicant. 18 In addition to the oral evidence, the Court read also the written submissions, including one from the Spot Precinct Committee. A major theme running through all the submissions is that the proposed development should comply with the council's density control and parking code. Parking 19 The traffic experts were Mr Graham Pindar, for the council, and Mr Robert Varga for the applicant, both traffic engineers. 20 Because of the site's small area and width, it provides an opportunity for at ground parking for only two cars. Under current use, the site contains two garages, both used in connection with the existing shops, leaving the existing two dwellings without parking. The proposal has increased this potential to four parking spaces by the use of a stacker. The stackers operate at three levels, so that each car is accessible without the need to move another car. The applicant proposes to use the four spaces in conjunction with the residential component of the proposal. In Mr Varga's opinion, this is the maximum that can be practically provided on the site. In Mr Pindar's opinion, two levels of basement parking can be provided with a car lift and turning table. Given the site's small area and 7.9m-width at Aeolia Lane, basement parking is, in my opinion, not practical. The ability to accommodate no more than four cars on the site should therefore be considered a fundamental site constraint. 21 The application of the Parking DCP would require 15 spaces, ie: Retail shops 5 spaces Dwellings 8 spaces Visitors to dwellings 2 spaces. 22 The council has included in its draft conditions a requirement for s94 contribution equivalent to two spaces. The applicant accepts this condition. In effect, the contribution is for the two existing car spaces, currently used for the existing retailing on the site and proposed for future residential use. Given that both sides agree to the contribution, in my opinion, the issue of retail parking is resolved. The question for the Court is whether the four spaces are acceptable for the proposed residential use, which, according to the Parking DCP, requires ten spaces. 23 The applicant maintains that actual car ownership in the area is lower than that required by the DCP. The 2001 Census indicates that the actual demand (ie car ownership rate) for a one-bedroom apartment in Randwick was 0.64 vehicles; while for a studio apartment it was 0.28 vehicles. I understood Mr Pindar not to be opposed to the approach of relaxing the Parking DCP requirement to the extent justified by the demand indicated in the 2001 Census. Based on the Census figures, the requirement for the residential component of the proposal is 5.12 spaces. Parking for visitors requires another two spaces; however, Mr Varga suggests that visitors can seek parking in the nearby public car park (not yet built but approved). I understood Mr Pindar to accept this approach. 24 It seems to me that the above approach is the most generous treatment that the applicant can reasonably expect. It involves three major concessions: first, acceptance that all the parking associated with the retail component can be met by the s94 contribution for two parking spaces, second, that all the visitor parking associated with the residential component can be accommodated in the public car park; and, third, that the parking requirement is based on the 2001 Census rather than the council's DCP. To go beyond this and argue, as Mr Varga has done, that part of the reduced requirement for permanent parking by future residents should be accommodated in the public car park seems to me unjustified. 25 In my opinion, the applicant should accept that the capacity of the site for residential development is constrained by the maximum of four cars that can be accommodated on-site. Based on the demand generated according to the 2001 Census, this means six one-bedroom apartments (or some other number of differently sized apartments). Given that the site is 361m2 in area and the proposal contains also two shops, this does not seem to me to be a very harsh constraint. 26 The above reasoning should not be interpreted to imply that, because of the inability to provide one or two parking spaces, the proposal becomes unacceptable. If the shortfall in on-site parking were the result of a proposal that complies with the density control, the suggestion to accommodate some of the parking associated with the residential component in the public car park may warrant consideration. In this case, however, the parking demand that cannot be met on-site arises from apartments that breach the density control. A building that complies with the maximum FSR of 1.5:1 is likely to yield in the order of five or six one-bedroom apartments. This indicates that the parking requirement (when applied in a manner most favourable to the applicant) and the maximum FSR produce similar results. 27 In my opinion, the failure to accommodate on-site the lowest possible estimate of parking demand generated by the residential component renders this proposal unacceptable. Height, bulk, scale and overdevelopment 28 The council's Statement of Issues includes the following: The excessive floor space, height, bulk and scale of the proposed development are unsuitable for the subject site, constituting an overdevelopment in the context of the surrounding built form. The subject site is not of a size that is reasonably capable of accommodating development of this scale in this location. 29 Statements of this kind appear in the vast majority of merit appeals that come before the Court. The terms excessive height, bulk and scale and overdevelopment are probably the most frequently used phrases in councils' Statements of Contention. While bulk and scale tend to be used interchangeably, strictly speaking, bulk refers to the mass of a building and scale is properly used only when referring to the relative size of two or more things. When scale is used to mean apparent size, it is better to use those words. When scale is used to denote the character of an area, it is better to use that word. All the above are highly subjective terms, since a building that one person perceives as too big, another person finds appropriately sized. This is the reason why in almost all disputes about height and bulk the Court receives evidence from an expert who thinks that these attributes are excessive and one who thinks that they are appropriate. 30 The debate about height and bulk can be meaningful only against the background of local planning controls, such as maximum height, floor space ratio, site coverage and setbacks. While these controls are usually also based on subjective judgment, they have been through a statutory process involving exhibition and the consideration of public comment. They therefore express the subjective preferences of a local community and should be given greater weight than the subjective preferences of individuals. 31 Some planning instruments and policies include objectives for controls, others do not. Whether such objectives are expressly stated or not, the controls are usually aimed at, on the one hand, constraining the adverse impact on neighbours and surrounding areas and, on the other, achieving a certain urban character. The desired character may be the continuation of the existing or, in areas where redevelopment is envisaged, the creation of a new character. 32 Because of the frequency with which height, bulk and character are matters in contention, it is useful to establish planning principles to guide how they may be assessed. Planning principle: assessment of height and bulk · 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. 34 Applying the above planning principle to the present case, I note that height is not in contention since the applicant's amendment reduces the height to around 10m. The matter that remains in contention is the bulk. 35 I turn to the first question in the first test, namely the proposal's impact, which, in this case falls mainly on No 33A. The question cannot be answered accurately since the applicant has not quantified the impact due to the non-complying portions of the proposal. It is true that it would be possible, if one tried hard enough, to design a building that complies with the maximum FSR and causes just as much overshadowing of No 33A. However, it is reasonable to assume that a complying proposal would not include the first floor of the rear section, thereby reducing the overshadowing, as well as the visual impact on No 33A. 36 I turn to the second question, namely the relationship of the proposal's bulk to the bulk desired under the relevant controls. In my opinion, that relationship is acceptable. From St Paul's Street the existing bulk remains, while from the lane the building is seen against the backdrop of the much bigger Ritz cinema. There is no valid argument that, because of the view from the lane, the bulk of the proposal should be reduced. 37 The planning intention for the Spot shopping centre, being part of a Conservation Area, is clearly to preserve the existing character; therefore the second test applies and the third and fourth do not. The two questions of the second test may be answered in the affirmative. The area has a predominant existing character and the planning controls are likely to maintain it. Apart from the Ritz cinema, the proposal would be the largest building in the lane; however, on the basis on visual impact alone, I do not think there is sufficient reason to refuse the application. Assessment of the SEPP 1 Objection 38 The applicant's planning expert was Mr Anthony Betros, while the council's expert was Mr Stuart McDonald, both planning consultants. Mr Betros prepared an Objection under SEPP 1 to the FSR development standard of 1.5:1. The Objection deals with a variation to 2.35:1; however, because of the applicant's amendment I read it to refer to a variation to 2.14:1. In Mr McDonald's view, the Objection is not well founded. 39 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where five questions are posed. The first question asks whether the control to be varied is a development standard. There was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. Mr Betros quotes the standard's purpose (not underlying but expressed in the LEP) as: To establish reasonable upper limits for developments in residential, business, industrial and special use zones through a limit on the amount of floor space that can be provided. This will help reduce the potential for adverse impact on nearby and adjoining development while still providing for reasonable levels of development and redevelopment. 40 Mr Betros answers this question by saying that "the design allows for a reasonable built form which reduces the potential for adverse impact on nearby and surrounding development". This statement is without substance. It does not quantify the overshadowing impact on No 33B, let alone the impact due to the non-complying part of the development. It fails to demonstrate that the proposal helps reduce the potential for adverse impact on adjoining development. The Objection hides behind generalisations in order to avoid the necessity to state the facts. 41 I note that Mr Betros agreed in oral evidence that impacts that flow from non-complying parts of a building should be assessed more strictly than those that flow from complying parts. This is, as he said, because the impacts of complying development are expected and likely to be accepted by neighbours. Despite this his evidence did not distinguish between the two types of impact. Given that the Objection fails to answer the second question satisfactorily, there is no need to visit the other three questions posed in Winten . The Objection is not well founded and therefore the application must fail. Conclusion 42 The subject site has a constraint: it can accommodate no more than four cars on-site. Applying the Parking DCP to the development would result in the site having no development potential. However, the council's expert, Mr Pindar, agreed to the retail parking being provided through monetary contribution; the residential visitor parking being accommodated in a nearby public carpark and the residential parking requirement being based on the parking demand indicated in the 2001 Census. Under these assumptions, the most favourable possible to the applicant, the site is capable of accommodating six one-bedroom apartments. The application, when amended by the deletion of two studio apartments, contains eight one-bedroom apartments. 43 In addition, the variation of FSR from the maximum of 1.5:1 to 2.14:1 is not justified. I note the submission of the applicant's advocate, Ms Sandra Duggan, that the existing FSR is 1.35:1 and therefore a 10% addition to the floor space is not likely to encourage redevelopment. I do not think that I can take the proposal's financial viability into account. However, even I could do so, I note that the submission may not be correct. The existing floor space is not well distributed for modern needs: there appears to be too much for the shops and too little for the dwellings. It is far from certain that a proposal containing two shops and six apartments and having a FSR of around 1.5:1 is unviable. 44 For the above reasons the appeal is dismissed. Orders 1. The appeal is dismissed. 2. Development application to demolish the existing development and erect a three to four-storey building containing two shops, eight one-bedroom and two studio apartments at 35-37 St Paul's Road, Randwick 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.