Land and Environment Court of New South Wales CITATION : Marinkovic v Rockdale Council No 2 [2007] NSWLEC 335 APPLICANT Milano Marinkovic PARTIES : RESPONDENT Rockdale Council FILE NUMBER(S) : 11622 of 2004 CORAM: Tuor C Development Application :- Mixed use development existing use rights KEY ISSUES: built form impact on adjoining properties, solar access, views and privacy adequacy of parking Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Regulation 1994 Rockdale Local Environmental Plan 2000 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings Marinkovic v Rockdale Council [2006] NSWLEC 601; Marinkovic v Rockdale City Council No 2 [2006] NSWLEC 432; CASES CITED: Marinkovic v Rockdale Council [2007] NSWLEC 71 ; Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71; Stromness v Woollahra Council [2006] NSWLEC 587; Tenacity Consulting v Warringah Council [2004] NSWLEC 140 DATES OF HEARING: 14 and 15 November 2006, 16 February 2007. Submissions on conditions received 14 May 2007 DATE OF JUDGMENT: 12 June 2007 APPLICANT Mr P Tomasetti, barrister SOLICITORS DC Balog & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr J Cole, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 12 June 2007 11622 of 2004 Marinkovic v Rockdale City Council No 2 JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Rockdale City Council (the council) of a development application (DA657/04) under the Environmental Planning and Assessment Act 1979 (the Act) for a mixed use development at 140 The Grand Parade, Monterey (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be upheld and development consent granted subject to conditions. The site and its context 3 The site is on the south west corner of The Grand Parade and President Avenue. It has a splayed frontage to The Grand Parade of about 12.86m and to President Avenue of 48 m with a width of about 15m and a total site area of 734.2sqm. The site is developed with a service station and mechanical workshop with a residential unit above. 4 Adjoining development to the west is a residential flat building (223 President Avenue) and to the south is a residential flat building, which is used for low cost accommodation (141 The Grand Parade). On the north west corner of President Avenue and The Grand Parade is a part 7 and part 8 storey residential flat building, which is the tallest building in the immediate vicinity. Further to the north along The Grand Parade is the commercial/retail precinct of Brighton Le Sands. 5 The area is characterised by residential flat buildings, which are generally three residential storeys with pitched rooves, some with above ground parking. 6 To the east, across The Grand Parade is Brighton Beach and Botany Bay. The proposal and its history 7 The application was lodged on 12 December 2003 and was notified to adjoining and nearby residents. Council received seven objections. The application was referred to Southern Sydney Group Design Review Panel (the Panel), which generally supported the proposal but recommended some changes. Council refused the application on 6 April 2005. 8 The applicant lodged the appeal on 22 December 2004. A series of amended plans were undertaken. A chronology is set out by Preston CJ in Marinkovic v Rockdale Council [2006] NSWLEC 601. 9 On 14 November 2006, the first day of the hearing, the application comprised (Exhibit F): i. Basement parking for 16 cars ii. ground floor – four shops and parking for 4 cars iii. first to third floors – 8 two bedroom apartments and 5 split level two bedroom apartments and 1 studio apartment. 10 The Court visited the site and heard evidence from Mrs F Walsh, the owner 141 The Grand Parade and Mr W Gobram, 9/223 President Avenue and other residents of these properties. The main concern of the residents was the loss of views and solar access, inadequate parking and increased traffic and noise and privacy impacts. 11 Mrs Walsh explained that her property was registered as a boarding house with 24 rooms housing up to 48 residents. A number of the units had separate kitchen facilities. The internal walk way for access to the units and the kitchens face north and provides considerable amenity. She was concerned that this walkway and some apartments would be overshadowed by the proposal and that the building would impact on views. She considered the proposal to be too high and that its proximity to the common boundary would be oppressive. She was also concerned that the proposal would impact on the financial viability of her building. 12 Mr Gobram was concerned that the proposal did not comply with the planning controls being four storeys with insufficient setback. He was also concerned about view loss from the balconies on the east and north side of his apartment and that the proximity of the proposal would impact on both his visual and aural privacy. 13 The Court also heard expert planning and traffic evidence on from Mr G Shiels, Court Appointed Expert, Mr Aberline, town planner for the applicant, Mr P Lonergan, architect for the applicant, Mr R Kulchar, council's planner and Mr J Milner, council's traffic engineer. 14 On 15 November 2006, I handed down preliminary findings (see Marinkovic v Rockdale City Council No 2 [2006] NSWLEC 432), which outlined amendments to the proposal. These had arisen from the experts during the hearing, primarily to reduce the impact of the proposal on overshadowing of 141 The Grand Parade and to achieve appropriate view sharing from 223 President Avenue: The amendments can be summarised as: · Unit 1 and 7 to be deleted to enable view sharing to the front balconies of 223 President Avenue. · No further extension of the top floor to the west to achieve an appropriate transition to 223 President Avenue and solar access benefits to 141 The Grand Parade. · No additional storey on the east of the building i.e. to remain four storeys rather than be increased to five. · Balconies along President Avenue to be either recessed or treated so that they read as lightweight structures with the building set back as the dominant element so that it does not read as a four storey building built right to the street alignment and to assist in view retention from 223 President Avenue · The 1.5m setback to the south west corner to be extended to ground level to provide a set back for 141 The Grand Parade. · Planting along the southern boundary to be provided to soften the building from 141 The Grand Parade. Planting along the west boundary to be a minimum of 1 m wide to soften the building from 223 President Avenue. · Car parking spaces at ground level to be screened from view from the street. This may necessitate a reduction in the retail floor space. · Basement car park to be reduced in size where possible to provide deep soil planting. 15 On 7 February 2007, Preston CJ in Marinkovic v Rockdale Council [2007] NSWLEC 71 granted leave for the applicant to rely on amended plans which largely incorporated these amendments (Exhibit G). 16 The amended application comprises: i. Basement parking for 16 cars ii. ground floor – four shops and parking for 4 cars iii. first to third floors – 14 two bedroom apartments 17 On 16 February 2007, the Court heard further resident evidence from Mrs Walsh and Mr Gobram. They maintained their concerns about the proposal. 18 The Court also heard further evidence from Mr Lonergan and Mr Kulchar. The main difference between the parties was the proximity of the development to 141 The Grand Parade and its impact on solar access, the number of parking spaces provided and the lack of deep soil planting and landscaping. A number of conditions remained in dispute. 19 On 24 April 2007 conditions were filed. These were agreed between the parties with the exception of condition 105 relating to the hours for commercial use of the ground floor parking spaces and condition 27 relating to the s94 contribution. The dispute on the s 94 condition had not been raised in detail during the hearing and further submissions on this matter were filed on 14 May 2007. Planning Framework 20 The site is zoned 2(c) Residential under Rockdale Local Environmental Plan 2000 (LEP 2000). The proposed development is not permissible within the zone. Residential flat buildings are permissible within the zone but not mixed use development. However, the site benefits from existing use rights under ss107 and 108 of the Act and cls 40 - 43 of the Environmental Planning and Assessment Regulations (the Regulations). 21 The application was lodged prior to the amendments to the Regulations relating to existing use rights and is therefore not effected by these changes. 22 Section 108 (3) of the Act states that the provisions of any environmental planning instrument cannot derogate from the existing use rights. Compliance with the controls in LEP 2000 is therefore not required and the application should be assessed under s79C of the Act. 23 The parties agreed that it is appropriate to consider the extent to which the proposed development would fit into the context of the existing buildings and the likely future character. The planning controls are indicative of the type of development likely to occur around the site and should be given weight in assessing the development within this context, consistent with the principles established for existing use rights by Roseth SC in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 and by Pain J in Stromness v Woollahra Council [2006] NSWLEC 587. 24 Rockdale Development Control Plan No 35 – Residential Flat Building (DCP 35), Rockdale Development Control Plan 72 - Mixed Use Development (DCP 72), Interim Mixed Use Development Policy (the Policy), Rockdale Council Parking and Development Code (the Code) and State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings (SEPP 65) provide guidance as to the likely future development of sites in the area. 25 SEPP 65 establishes ten design principles for residential flat development. SEPP 65 requires a consideration of the Residential Flat Design Code (RFDC). Part 3 of SEPP 65 provides for the establishment of a Design Review Panel (the Panel) to provide advice on the design quality of residential flat buildings. The Panel considered the application on a number of occasions. The panel generally supported the application but recommended changes, including a transition of three storeys to the west up to five storeys on the corner of President Avenue and The Grand Parade. The issues 26 The draft Fourth Amended Statement of Issues before the Court at the commencement of the hearing contained 7 issues and a number of sub issues. A number of issues were resolved by amendments to the plans or conditions. No further Statement of Issues was filed with the final amended plans (Exhibit G). The key issues in the hearing were whether: i) the built form of the proposal was acceptable within the existing and future context. ii) the proposal has an acceptable impact on views, solar access and privacy of adjoining properties vi) the proposal provides adequate parking. Built form 27 The key difference of opinion between the experts was whether the height of the building related to its context and whether it was setback sufficiently to adjoining buildings. The applicant's experts considered that the building on the corner of President Avenue and The Grand Parade established the context for the proposal. Whereas Mr Shiels and Mr Kulchar considered this building to be the exception and that the context was established by other building in the area, which were generally three storeys. 28 Mr Shiels noted that the controls under LEP 2000 and DCP 72 permit a three storey development with a floor space ratio (FSR) of 1:1 but they do not apply to the development because of its existing use rights. He considered that the height and bulk of the proposal was generally compatible with existing development in the area and the intent of the planning controls. While the proposal was partly four storeys with a flat roof, it was no higher than the adjoining three storey flat buildings with pitched roofs. He considered the proposal to be of appropriate scale to mark the corner of President Avenue and The Grand Parade but raised concerns about its relationship with the adjoining residential development to the west. 29 Mr Shiels recommended that the proposal should step down to three storeys at the rear to achieve a better transition. He did not agree with Mr Aberline and Mr Lonergan that any reduction to the rear could be compensated for by a five storey element on the corner of President Avenue and The Grand Parade, as he did not consider an increase in height to be appropriate for the context. 30 In my preliminary findings, I accepted Mr Shiels recommendation. The step down to three storeys provides a transition as well as view sharing to 223 President Avenue and increased solar access to 141 The Grand Parade. The amended plans have incorporated these changes and are therefore satisfactory. 31 Mr Shiels also recommended that the proposal should be setback at its south east corner. The existing building on the site is built to its southern boundary at ground level for most of its length. The proposal maintains this relationship at ground level and the plans have been amended to provide a 1.5m setback at its south west and south east corners. The upper levels of the proposal have varying setbacks that range from 1.5m to 3m from the south boundary. 32 While a greater setback would be desirable this cannot be achieved if the site is to be developed separately as its width is only about 15m. Amalgamation of the site with adjoining development is unlikely and the parties agreed that redevelopment of the site is desirable given the existing use of the site as a petrol station. The proposed setbacks have an acceptable impact on the adjoining development at 141 The Grand Parade as they maintain the existing relationship at ground level and there are adequate setbacks on the other levels. 33 The shops are built to the street frontage along President Avenue, which provides an active street frontage and was supported by Mr Shiels. At the upper levels the balconies are built to the street frontage and the building is generally setback about 1.5m. Again a greater setback of the upper levels would be desirable but due to the narrow width of the site is not feasible. Given the site's corner location and the glass balustrade proposed for the balconies in the amended plans the setback along President Avenue is acceptable. 34 The proposal is setback from its west boundary about 7m at ground level; this increases to about 11m at first and second floor and 18m at the third floor. The setback of the proposal to The Grand Parade is consistent with other building along this street. The setbacks to the east and west are acceptable. Impact on adjoining properties 35 In relation to overshadowing, the amended plans are consistent with the changes recommended by the experts and the preliminary findings of the Court. The deletion of the units has reduced the impact of overshadowing on 141 The Grand Parade. Solar access to the living areas of the self contained apartments will be maintained, however, the walkway and kitchens will be overshadowed. The kitchens are small and do not provide seating areas, the walkway provides access to the units and the kitchens but is not a living area. Any development of the site above that which currently exists would impact on the solar access currently enjoyed by these areas. The experts considered the overshadowing to be reasonable and I accept this opinion. 36 In relation to view loss, the amended plans are consistent with the changes recommended by the experts and the preliminary findings of the Court. The views to the Bay from the front balconies of 223 President Avenue are generally maintained. Although the planter box along the north west corner of the terrace off Unit 11 will restrict views and is not necessary for privacy. I have included a condition to delete this part of the planter box. 37 The views of the Bay from the balconies of 223 President Avenue facing west will be lost. However, these balconies face a side boundary and look across the site. It is not unreasonable that development of the site would impact upon them. In considering the principles for view sharing of Roseth C in Tenacity Consulting v Warringah Council [2004] NSWLEC 140, I accept that reasonable view sharing has been achieved by the amended proposal. 38 In relation to privacy, the proposal is setback sufficient distance from it rear boundary to not impact on privacy. In addition privacy screens are provided to the balconies off units 1 and 6 and a planter box to the terrace off unit 11. The experts did not raise privacy to 141 The Grand Parade as an issue. Parking 39 Council and the residents raised concerns about the amount of parking provided to service the development; of particular concern was the extent of parking provided to service the shops. 40 Mr Tomasetti's submitted, for the applicant, that the proposal would generate significantly less traffic and demand for parking than the existing use of the site. Mr Shiels considered this was a relevant factor and agreed that based on the Code the existing use on the site had a deficit of 26 spaces. Mr Shiels considered that the proposal generally compiled with the Code as the shops were "small local shops" which service primarily a walk in clientele and require 1 space per 50sqm of gross floor area (6 spaces). Mr Milner considered the rate of 1 space per 25sqm of gross floor area (12 spaces) to be more appropriate as the proximity of the shops to the beach may attract a wider patronage. The experts agreed that the residential component required 1 space per small/medium dwelling (14 spaces) and residential visitor parking at the rate of 1 space per 4 dwellings or part thereof (4 spaces). 41 Mr Milner concluded that under the Code the proposal would generate the need for 30 spaces whereas Mr Shiels considered 24 spaces was required. The proposal provides 20 spaces. The code recognises that a reduction in numbers may be acceptable where it is: considered that the proposed usage is preferable to the previous use, there would be some hardship in carrying out the proposal if the full car parking requirement were to be met and there would not be any increase in on street parking generated by the proposal relative to the previous use of the land 42 The Code also recognises that for a mixed use development, shared use of parking may be appropriate. Mr Shiels considered that on this basis the visitor parking required for the residential component could utilise the parking required for the shops, outside their opening hours. This would require the hours to be limited to 7.30am to 6pm Monday to Saturday and 7.30am to 1pm on Sundays. 43 As stated in my preliminary findings, I accept the evidence of Mr Shiels. The shops are local shops and the consent requires that a separate application be submitted for the use of these shops. Mr Tomasetti submitted that there should be no limitation on the parking for the shops as the assessment of any future application for their use would require a consideration of the demand for parking and the shared use of spaces 17-20 by both the shops and residential visitors as well as potential impacts on the residential properties both within and adjoining the development. 44 While this submission has some merit, the proposal provides no separate parking for residential visitors. Mr Shiels considered this acceptable on the basis of a shared use of car spaces 17-20 i.e. when the shops were not in use the parking would be available for residential visitors. It is therefore appropriate that this requirement be incorporated as a condition rather than left to a later assessment. However, I have amended condition 105 to permit use of the spaces during the recommended hours or the approved hours of the shops. 45 I have also used the term "shop" in the conditions rather than "commercial premises". These terms are separately defined in LEP 2000. The applicant has applied for shops and the parking demand has been assessed under the Code on the basis of "small local shops". Commercial uses would generate a different demand for parking, which has not been assessed. 46 Mr Cole, for the council, submitted that the proposal had not reduced the size of the basement car park to provide the opportunity for more deep soil planting and provide a better transition between the adjoining residential flat building to the west. I raised the lack of deep soil planting and landscaping in the preliminary judgment. The amended plans are a marginal improvement. While I still consider this to be a negative feature of the development I do not find that, of itself, it is a reason for refusal especially given the lack of landscaping of the existing development. Conditions 47 Condition 27 was the only other condition that remained in dispute between the Parties. This condition related to the amount of s94 contribution to be levied in accordance with Rockdale Section 94 Contributions Plan (Amendment No 4) (s94 Plan). This was the relevant plan when the application was lodged and continues to apply. 48 As I understand the submissions from the parties, the applicant considers the s94 contribution should be less based on figures in a schedule provided by the council on 21 March 2007 entitled 'Section 94 Contributions (General) – Calculation' (the Spreadsheet). This classifies a small dwelling as <65sqm. As only three units in the proposal exceed 65sqm, the applicant submits that the contribution should be adjusted. Further the applicant submits that cl 7.1 - Occupancy Rate of the s94 plan specifies a small dwelling as <55sqm but is not applicable to the calculation. 49 The council's submission is that the Spreadsheet does not form part of the s94 plan and is used only as a guide. Further the Spreadsheet contains an anomaly, as the reference to unit sizes is not consistent with the s94 Plan. The council submits that: The applicant has mis-characterised the type of units that the Council considers to be "medium" in size as being "small" in size. This is not correct, because clause 7.1 of the Plan needs to be taken into account in the first instance to obtain the correct characterisation, and then the figures from Amendment No 4 of the Section 94 Contributions Plan, which was current at the time that the development application was lodged need to be applied. 50 I accept the Council's submission. Section 94B(1) of the EPA Act provides: A consent authority may impose a condition under s94 or 94AA only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division) 51 The Spreadsheet does not form part of the s 94 Plan. Clause 7.0 - Determining a Contribution Rate provides: For ease of application, a contribution rate per dwelling shall be specified. A fair and reasonable rate has been derived, having regard to:- i) average occupancy rates by dwelling size: and ii) the cost of proposed facilities. Each of these is described below. 52 Clause 7.1 – Occupancy Rates of the s 94 Plan provides the dwelling size referred to in cl 7 and is therefore to be used in the calculation of contributions. I accept council's submission that the s 94 contribution has been calculated in accordance with the s 94 Plan and condition 27 is therefore retained without amendment. 53 In addition to the conditions referred to earlier relating to the planter box (condition 2C) and the car parking spaces (condition 105) I have included additional conditions agreed to during the hearing (Exhibit 8) which refer to the enclosure of the car park access ramp (condition 2A) and fencing along the south boundary (condition 2B). The landscape plan (Exhibit G) has been included in the approved drawings in condition 2 as this includes the street tree panting recommended by the Panel and the landscape concept for the site. Condition 30 requires an amended landscape plan that is consistent with the approved architectural plans. Orders 54 For the above reasons the Orders of the Court are: 1. The appeal is upheld. 2. The development application (DA657/04) for a mixed used development comprising 14 two bedroom residential units, four shops and four parking spaces at ground level and basement parking for 16 cars at 140 The Grand Parade, Monterey, is approved subject to the conditions in Annexure "A". 3. The exhibits, except exhibits G and 8, may be returned. __________________ Annelise Tuor Commissioner of the Court 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.