Land and Environment Court of New South Wales CITATION : Bentos Pty Limited v Woollahra Municipal Council [2007] NSWLEC 506 APPLICANT Bentos Pty Limited PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10235 of 2007 CORAM: Bly C KEY ISSUES: Development Application :- four storey residential flat building, heritage, streetscape, height, landscape, setbacks, carparking, visual impacts, overshadowing, scale, stormwater drainage, character of buildings Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 LEGISLATION CITED: Woollahra Residential Development Control Plan 2003 State Environmental Planning Policy No. 1 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development CASES CITED: Winton Property Group Limited v North Sydney Council 2001 NSWLEC 46 DATES OF HEARING: 30/07/2007 and 01/08/2007 EX TEMPORE JUDGMENT DATE : 1 August 2007 APPLICANT Mr A. Pickles, barrister Instructed by Mr G. Harkham Harkham Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M. Connell, solicitor of Home Wilkinson Lowry, Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 1 August 2007 10235 of 2007 Bentos Pty Limited v Woollahra Municipal Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 This appeal relates to Development Application No. 298/2005 which is for the demolition of an existing residential flat building containing four dwellings and the construction of a new four storey residential flat building. The proposed building is to comprise a single dwelling on each of its four levels plus a basement providing parking for nine cars. 2 The Woollahra Council refused the application in August 2006. 3 The site at 2 Bundarra Road, Bellevue Hill has a frontage of 15.24 metres, a depth of about 46 metres and an area of about 703 square metres. It rises approximately 1.5 metres from the front boundary to the rear part of the site that has a seven metre high rock face escarpment. 4 According to the Statement of Environmental effects the existing 1920's residential flat building has no heritage significance that would warrant its retention. Adjoining the site to the east at 70 Birriga Road is a substantial two storey older style residential flat building. To the west at 4 Bundarra Road is a substantial two storey dwelling house and further to the west again, at 6 Bundarra Road is a four level residential flat building. More generally Birriga Road and Bundarra Road have been the subject of recent redevelopment comprising multi-storeyed residential flat buildings. 5 According to the Statement of Environmental effects: "The streetscape is an eclectic mixture of no one form or style with larger contemporary residential buildings with little colour variation or stylistic differentiation sitting against 1920s buildings exhibiting modest detailing and styling." 6 The site is zoned residential 2(b) under Woollahra Local Environmental Plan 1995 ("the LEP") and in this zone the proposal is permissible with development consent. Clause 9(5) of the LEP requires that consent shall not be granted unless the development is consistent with the objectives of the plan and the applicable zone. 7 The objectives of the LEP, including those that directly apply to residential development, are fairly general. The objectives of the 2(b) zone relevantly provide for areas of medium and high density residential development with a diversity of dwelling types and tenure. There was no submission that these objectives were infringed by the proposal. 8 The LEP describes the 2(b) zone as comprising areas that are characterised by existing medium density residential flat buildings and areas where potential has been identified for increased medium density residential development. 9 Clause 11 of the LEP, by reference to the density map, sets a floor space ratio of 0.875:1 and this is met by the proposal. Clause 12 of the LEP, by reference to the heights map, sets a maximum height limit of 12 metres for the site and, but for the lift overrun structure, the proposed building meets this requirement. As a result of the non-compliance with this development standard an objection pursuant to State Environmental Planning Policy No. 1 - Development Standards has been provided. The respondent accepts this objection and raises no concern in relation to the exceedence of the height limit. 10 Clause 10B(2) of the LEP provides that a site must have an area of at least 930 square metres and a width at the front alignment of 21 metres if it is to contain four or more dwellings. 11 There being four dwellings proposed, the development fails to meet these requirements and, as a consequence, an SEPP 1 objection has been provided. 12 The objectives of these development standards include the need to achieve: compatibility between the scale, density, bulk and landscape character of buildings and allotment size; provide sufficient space between buildings, taking into account solar access, view corridors and deep soil landscaping; ensure sufficient land for car parking; and the encouragement of allotment consolidation to enable a diversity of dwelling types. 13 Returning to the maximum height limit, I note that the proposed building largely complies with this development standard with the lift overrun exceeding the 12 metre limit by up to about 700 millimetres. Interestingly, the proposed building is about the same height as the peak of the roof of the existing building on the site. Also, having an RL of 52.49, it is about one metre lower than the adjoining 70 Birriga Road at RL 53.04 and a little over one metre higher than the adjoining building at 4 Bundarra Road at RL 50.81. 14 Section 5.2 of the Woollahra Residential Development Control Plan 2003 ("the DCP") contains pro rata setback requirements that require increasing setbacks as a building increases in height. According to Exhibit 13 this requirement is variously infringed by the proposed building by up to 2.5 metres at the fourth level, with these non-compliances generally reducing to compliance at the third level. Below this the building progressively and variously exceeds the requirement by up to between one and four metres at ground level. The objectives of the setback requirements include: the preservation of tree and vegetation networks; the sharing of views and the maintenance of privacy and sunlight access; the continuity of building forms; and limiting excavation and minimisation of cut and fill. 15 Section 5.9 of the DCP contains car parking and access requirements. Whilst a sufficiency of car parking has been provided, the respondent raises concerns that the majority of the access requirements for the car spaces are unsatisfactory, failing to meet the applicable DCP requirement. Section 5.3.1 requires that residential flat buildings have a deep soil landscape area of at least 40% of the site area. There are various objectives associated with open space and landscaping but it emerged that the objective of principal concern to the respondent is that requiring the enhancement of the appearance and amenity of the locality. 16 Also applicable is State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development. In this regard the Statement of Environmental effects contains an assessment of the proposal and an architectural design statement prepared by the proposal's architect, Mr Z Kovacs, as required by the Residential Flat Design Code. 17 The application was advertised and four objections were received, including three from the neighbouring residential flat building at 70 Birriga Road. Matters of concern to these residents include: unsatisfactory vehicular access and parking arrangements; amenity impacts including noise, air pollution, overshadowing and the appearance of the building; asbestos removal and geotechnical concerns; adverse microclimatic consequences and stormwater damage. 18 The amended Statement of Issues identifies four issues of concern to the respondent comprising: adverse visual impacts on the streetscape and adjoining properties; overshadowing of the property at 70 Birriga Road; inadequate onsite car parking facilities; and the matters raised by the resident objectors. 19 On behalf of the respondent council expert evidence was provided by Mr C Hallam, traffic engineer and Mr D Booth, town planner. On behalf of the applicant expert evidence was provided by Mr G Pindar, traffic engineer and Mr G Boston, consultant town planner. The town planning experts and the traffic experts provided joint reports and gave concurrent evidence. 20 When the hearing began on site I heard from Mr M Oser of 4 Bundarra Road and Mr Simpson of 5/70 Birriga Road. Mr Oser was concerned about possible overshadowing of existing vegetation in his rear yard and loss of privacy. He was also concerned about stormwater drainage and the catabatic effect of the proposed building, particularly the trapping of very cold air in winter between the buildings and the rock face at the rear. Mr Simpson was concerned about possible loss of privacy and overshadowing. 21 I have considered these concerns and am satisfied that none of them raises any matter of determinative significance, taking into account the expert evidence, the shadow diagrams and the stormwater drainage concept plan. More particularly, the concerns about the katabatic effect are, in my opinion, alleviated by the fact of the distances of separation between buildings that will continue to allow a sufficient circulation of air. 22 Having considered all of the evidence, including the applicable planning controls, I conclude that the matters for my determination comprise: o Whether the basement car parking arrangement is satisfactory in terms of the ability for vehicles to be manoeuvred into and out of the parking spaces. o Whether the proposed building would unreasonably overshadow the neighbouring building at 70 Birriga Road. o Whether the proposed building would adversely affect its neighbours at 70 Birriga Road and 4 Bundarra Road in terms of its appearance. o Whether the proposed development would have a sufficient area of deep soil landscaping. o Whether the failure of the development to meet side setback, lot width and site area requirements are acceptable, particularly in terms of the appearance of the building in its context. 23 In relation to overshadowing, I understand that the concerns in this regard involve some midwinter overshadowing of one upper level bedroom window and the rear courtyards at 70 Birriga Road. Mr Booth conceded that in terms of overshadowing the requirements of the DCP were met. However, he was concerned that a complying building, in terms of the setback requirements of the DCP, would reduce any overshadowing. Conversely, Mr Boston contended that the overshadowing was not significant because the affected bedroom window would still achieve good solar penetration and the overshadowing of the rear courtyards was largely subsumed within existing shadows. The reasoning of Mr Boston has persuaded me that the shadow impacts are not sufficient to warrant any changes to or refusal of the proposal. 24 As for the building's appearance when viewed from its immediate neighbours I also agree with Mr Boston that, taking into account the architectural detailing, including fenestration and use of differing materials together with the proposed landscaping, that the building's presentation will be satisfactory. 25 As described earlier the DCP requires that 40 per cent of the site be set aside for deep soil landscaping. The proposal does not meet this requirement but with the applicant's offer to remove certain areas of hard paving about 36 per cent would be available. In this context, I note that the footprint of the proposed building and other works is about 28 % and, excluding the right of way, the remainder of the site is otherwise available for landscaping and comprises about 28 % of the site. This additional landscaped area, whilst being at ground level, is nevertheless above the basement car park. It is to have a minimum soil depth of 500 millimetres and, because much of it adjoins and connects with the deep soil landscaping areas, it can be taken into account in deciding whether there is a sufficient area of the site available for landscaping. Having considered the landscape plan, I agree with Mr Boston that this represents an appropriate outcome and am satisfied that the landscaping will provide an appropriate setting for this building both when viewed from the public domain and from neighbouring properties. By comparison with what exists on the site at present I am also satisfied that the landscaping proposal will result in the enhancement of the appearance and amenity of the locality as required by the DCP. 26 As already indicated, the proposal does not comply with the site area and frontage development standards in cl 10B(2) of the LEP. Whilst not applicable to this development application reading cl 10B(1) together with cl 10B(2) assists in understanding what the objectives of the development standard are seeking to achieve. Clause 10B(1) provides that for a residential flat building containing up to three dwellings the width of a site must be at least 15 metres whereas cl 10B(2) provides that for a residential building containing four or more dwellings the width of the site must be at least 21 metres and, in addition, the site must have an area of at least 930 square metres. 27 The first stated objective of these standards requires compatibility between the scale, density, bulk and landscaped character of buildings and allotment size. I understand that this objective refers to compatibility between a proposed development under consideration and the buildings and allotments in the relevant context. In my opinion, whilst the size of an allotment of land can assist, in relation to matters to such as scale, density, bulk and landscaping, controls dealing with floor space ratio, maximum building height, minimum landscaped areas and setbacks are much better at targeting these matters than dwelling numbers. 28 Similarly, the second stated objective that requires sufficient space between buildings, adequate deep soil planting and the protection of view corridors, can be assisted by the size of an allotment but this has little to do with the number of dwellings in the building. Again, such matters can be better targeted by building setbacks and minimum landscaped areas. A similar approach can be applied to the stated objectives dealing with subsurface water flows and car parking. As for the objective that encourages consolidation of allotments, it is clear that larger lots can facilitate a diversity of dwelling types but this does not make it happen. Plainly the encouragement of a diversity of dwelling types would be better effected by more particular controls targeting the necessary diversity. 29 Leaving aside for a moment the requirements of the DCP, a building of the same height and floor space ratio, as is presently proposed, but containing three dwellings rather than four would meet the requirements of cl 10B(1) because the site has a width of more than 15 metres. Hence, in theory, the objectives of the requirements of cl 10B would be met by a building containing three dwellings but not by an essentially identical building containing four dwellings. In these circumstances, I am inclined to give less weight to the fact of the technical non compliance with the development standard itself and give more weight to the objectives of the standards. On this basis, I do not accept that on its merits, as a consequence of the width of the site, there can only be three dwellings on it. 30 In reaching this conclusion, I have also taken into account Mr Boston's comment that the proposed four dwelling development represents the smallest possible variation with respect to the three dwelling requirement in cl 10B(1) and the fact that the existing development on the site already contains four dwellings. 31 Also, in terms of density, the floor space ratio development standard is a more useful indicator of acceptability, this requirement being met by the proposal. Despite these matters the site width and area requirements are development standards and must be treated as such. 32 Whilst the SEPP 1 objection dealing with these development standards was criticised, I accept that in essence it meets the requirements for such objections as set down in Winton Property Group Limited v North Sydney Council 2001 NSWLEC 46. It identifies the development standard and its stated objectives and sets out a number of reasons why compliance is not necessary. It concludes that the requirements of SEPP 1 are met and that strict compliance with the standard is unreasonable and unnecessary in the circumstances of the case. The more important reasons in essence comprise: o The proposed development achieves the purpose for which the site is zoned. o The site is developed with a residential flat building containing four dwellings and the proposed building will have a similar scale to it. o The close by 6 Bundarra Road has a similar frontage, is effectively four storeys above ground level and contains six dwellings. o The form, density and character is generally comparable to existing development in Bundarra Road. o There are no unreasonable impacts associated with views, overshadowing, privacy or solar access. o The amount of excavation for the basement car park is not excessive. o Amalgamations with adjoining properties are unlikely. o A reduced number of dwellings would not reflect actual impacts of the development. 33 All things considered, the proposed development meets the objectives of the Environmental, Planning and Assessment Act 1979 with regard to the orderly and economic development of land and provides a better environmental outcome by comparison with no redevelopment of the site. 34 Mr Booth did not accept that the SEPP 1 objection should be upheld because the stated objectives of the standard were not met, particularly in relation to the building's excessive scale and bulk, inadequate deep soil landscaped area, overshadowing and unsatisfactory car park layout. I have already dealt with issues of adequate deep soil landscaped area and overshadowing and, as I will shortly conclude, whilst the car parking arrangement is not optimal it is not of such concern as to warrant refusal of the application. This leaves the matters of the scale and bulk of the building and the related aspect of setbacks in the context of streetscape. 35 Mr Booth explained that a four storey building would be incongruous in terms of the context of the immediately adjoining development and the desired future character for the precinct. It would have an excessive scale in terms of height and width relative to the width of the site and fails to comply with the requirements of the DCP for side setbacks with consequential adverse impacts on neighbours. He pointed to the adverse streetscape impacts associated with 6 Bundarra Road that would be repeated by this development. In essence, he said that the proposed building is one storey too high and by the removal of the top storey, compliance with the three dwelling requirement of the LEP would be achieved, as well as compliance with the setback requirements of the DCP. This would result in a building that is appropriate in the streetscape. 36 Mr Boston disagreed, explaining that the proposed development is responsive to the character of the Bellevue Hill South precinct, as described in the DCP, particularly in relation architectural style, separation between buildings, landscaping and residential building scale. Taking into account the building height map, the site can be considered to be in the Bellevue Hill South Major Street section, as referred to in the DCP, where development can be a maximum of four storeys. It was his opinion that the three dimensional form and massing of the proposed development is consistent with that of development generally within the site's visual catchment. Moreover, the height, bulk and scale of the development is consistent with the form of development anticipated by the height and floor space ratio development standards applicable to the site. He accepted agreed that the scale of the development is greater than the two immediately adjoining properties but is nevertheless acceptable, taking into account the proposal's compliance with the floor space ratio and height controls. He also explained that in relation to the vertical proportions of the building in terms of its presentation to the street, the modulation and articulation of the façade, including the recessed balconies, needs to be taken into account together with the window proportions that emphasise the horizontal massing of the development. The different design of the top floor in terms of its architectural detail ensures that it would be recessive in the streetscape context and he concluded that overall the development comprises good design. 37 The building setback requirements in the DCP seek, amongst other things, to avoid an unreasonable sense of enclosure and the objectives deal with preservation of tree and vegetation networks and the sharing of views and preservation of privacy and sunlight access. They also seek to ensure the form and scale of development is not excessive and to limit the site excavation and minimise cut and fill. 38 Having already dealt with the proposal's amenity impacts on neighbouring properties and landscaping and there being no concerns raised as to excessive site excavation, the remaining aspect associated with the setbacks requirements that are of concern involves the form and scale of the development. 39 In this regard, Mr Booth reiterated his concerns about the design of the building in the streetscape. Mr Boston said that the setbacks are entirely consistent with the setback characteristics of development generally within the site's visual catchment. Also, the area of non-compliance does not impact on the streetscape, especially taking into account the over-compliance at the lower levels of the building that allows for a much better landscaping arrangement than would otherwise be the case. 40 I am satisfied that the objectives of the setback requirements are essentially and sufficiently met by the proposal such that they need not be strictly complied with. In this regard I accept the evidence of Mr Boston. The proposed building complies with the applicable floor space ratio and for the most part with the height development standard and has a height similar to and, in my opinion, not fundamentally out of character with nearby buildings on this side of the street. I have reached this conclusion, taking into account the variety of built forms in the immediate vicinity and the fundamentally different character of this building by comparison with its immediate neighbours. 41 I also accept the evidence of Mr Boston that the building would not be incongruous in its context. I expect that the likely future character of this area, as anticipated by the LEP and by the DCP provisions that deal with the Bellevue Hill South precinct, continue to change, with new development not being entirely dissimilar in form and character to the existing more modern developments in Bundarra Road. I have therefore decided that, in terms of streetscape and character and taking into account its architectural detail and modelling, its height, bulk, setbacks and the proposed landscape setting, the proposed building warrants approval. 42 For the reasons given in the SEPP 1 objection, together with the above reasoning, I would uphold it. 43 The final issue involves the manoeuvring difficulties for vehicles utilising the basement car park. 44 The DCP requires that vehicles be able to manoeuvre into a designated parking space in a single turning movement and leave it in no more than two turning movements. Australian Standard, AS 2890.1 - 2004, allows for ("the Australian Standard") residential domestic parking, a three point turn entry and exit and sets more stringent requirements for commercial and high turnover premises. 45 In their joint report the traffic experts identify the nine car parking spaces and the number of entry and exit movements associated with them. Most of these spaces do not comply with the DCP, although most of them probably comply with the Australian Standard. The respondent submitted that the requirements of the DCP should be imposed and that the arrangement was thus unsatisfactory. However, if this were the only issue in the case it would not by itself warrant refusal of the application. 46 Plainly, the arrangement as proposed is not great and I might have expected that for a development of this quality these arrangements would have been better however, I accept that on balance the Australian Standard is a reasonable requirement, notwithstanding the provisions of the DCP. Whilst I have decided to grant development consent for this development, I would nevertheless encourage the applicant to again consider whether a revised basement design might produce a better outcome. 47 The Orders of the Court are therefore, 1. The appeal is upheld. 2. Development application No 298/2005 for the demolition of the existing residential flat building and the construction of a four-storey plus basement residential flat building at 2 Bundarra Road, Bellevue Hill is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3. Exhibits 8, A and B are retained. ___________________ T. Bly Commissioner of the Court DK/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.