Land and Environment Court New South Wales Medium Neutral Citation: Bogatez v Council of the City of Sydney [2011] NSWLEC 1168 Hearing dates: 23, 24 May 2011 Decision date: 24 May 2011 Jurisdiction: Class 1 Before: Brown C Decision: Appeal dismissed Catchwords: DEVELOPMENT APPLICATION - demolition of an existing warehouse and the construction of a new mixed use building - whether bonus floor space ratio is available - internal amenity - building separation Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 Category: Principal judgment Parties: Andrew Bogatez (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel Ms S Duggan SC (Applicant) Mr P Clay Barrister (Respondent) Solicitors Conomos Legal (Applicant) Council of the City of Sydney (Respondent) File Number(s): 11064 of 2010 Judgment 1COMMISSIONER: This is an appeal against the refusal of development application number D/2010/1786 by the Council of the City of Sydney (the council) for the demolition of an existing warehouse within the eastern part of the site and the construction of a new mixed use building comprising 36 residential units, two retail tenancies, a cafe and 78 car parking spaces at 145 McEvoy Street, Alexandria (the site). 2The appeal was subject to a conciliation conference on 14 March 2011 under s 34 of the Land and Environment Court Act 1979. As no agreement was reached, the conciliation conference was terminated pursuant to section 34(4)(a). The parties consented to me disposing of the proceedings at a later date pursuant to s 34(4)(b)(i), and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii). The site 3The site is lot 2 in DP 229062 and has a frontage to McEvoy Street of 16.13 m and a frontage to Fountain Street of 107.23 m, and an area of 3,725.92 sq m. 4The site contains a three-storey warehouse fronting McEvoy Street that extends along the eastern and southern boundaries (the building to be demolished and subject of the appeal) and a 1960's two-storey warehouse building facing Fountain Street. Both buildings are located on Lot 2. The latter building fronting Fountain Street is currently under refurbishment through a previous consent granted by the council to provide a specialist grocer and caf at ground level, seven office tenancies at first floor level and 37 car parking spaces. 5The original contentions have been reduced through amendments to the plans and the remaining contentions are: 1. whether the bonus floor space ratio is available to the applicant, 2. whether the internal amenity of some units is acceptable; and 3. whether there is an acceptable setback to the other building on the site. Relevant planning controls 6The site is within zone 10(b)-Mixed Use "B" zone under South Sydney Local Environmental Plan 1998 (LEP 1998). The proposed development is permissible with consent in this zone. 7South Sydney Development Control Plan 1997 (the DCP) applies. Part B addresses Urban Design Principles, Part E addresses Environmental Design Criteria, including floor space ratio, and Part F addresses design criteria for specific sites. 8South Sydney Development Control Plan 1997 :Urban Design - Part G, Special Precinct No 9 - Green Square (the DCP - Pt G) applies. Clause 1.1 identifies the land to which the DCP applies and includes the site. Clause 1.3 states that the DCP - Pt G complements DCP 1997 and must be used in conjunction with this DCP, and where there is an inconsistency, the provisions of DCP - Pt G shall prevail as far as they apply to the Green Square Urban Renewal area. Clause 3.2 addresses Built Form and provides for an FSR of 1.1 and a maximum FSR of 1.5 to 1. 9State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 and the publication Residential Flat Design Code (the RFDC). 10Draft City of Sydney Local Environmental Plan 2010 and draft Development Control Plan 2010 apply to the site and were exhibited until 21 April 2011; however, due to their infancy, these draft plans could not be seen to be imminent or certain. Bonus floor space ratio The requirements 11The proposal has a floor space ratio (FSR) of 1.499:1 and the issue over FSR centres on the availability of the bonus floor space ratio available in cl 3.2 of DCP - Pt G. Clause 3.2 provides for an FSR of 1:1 and a maximum (or bonus) FSR of 1.5:1. Clause 3.2 states: 3.2 Built form Development in Green Square will take place over a considerable amount of time and different designers may be responsible for the design of buildings on individual sites within larger redevelopment sites. In view of this, built form controls must strike a balance between a level of certainty through prescriptive controls, whilst allowing for some flexibility and variation to achieve the diverse urban form desired for Green Square. Floor space ratio The scale and overall intensity of development is expressed in Map 6, Floor Space Ratio . The map specifies a base floor ratio (FSR) and maximum bonus FSR specifically intended to encourage the provision of material public benefits over and above Section 94 requirements. The base FSR's for Green Square range from 1:1 in existing residential areas to 2:1 in other selected areas. The base FSR may be exceeded on sites only when a development provides substantial public and environmental benefits, such as: + Dedication of land for wider pedestrian and/or cycle paths, additional usable open space, new streets (beyond basic streets required to service the development), bus and traffic turning lanes, identified pedestrian through-site links, and where appropriate, the treatment of those spaces; + Provision of streetscape, bicycle, and pedestrian enhancement work, such as widened footpaths, street tree islands, local parks achieved through road closures, flush entry thresholds, nodal treatments, pedestrian crossings, bicycle paths, overpasses and underpasses, traffic management facilities, etc, which are considered by the Consent Authority to be over and above public domain improvements normally expected as a consequence of development of a site; + Undertaking social development projects, such as provision and upgrade of community buildings; + Carrying out stormwater amplification, integrated water treatment facilities and large scale detention systems and other civil infrastructure projects; + Public transport projects, such as bus priority projects and subsidisation of embryonic bus services; + Enhancements to existing parks, such as play equipment, lighting, sports facilities, furniture, landscaping, etc; + Any other works or improvements at the discretion of the consent authority. FSR's are calculated on the existing allotment areas, and include any areas identified for new streets or open space in the Urban Framework, excluding existing streets and public open space." 12The applicant maintains that the 1.5:1 bonus FSR is available because the development provides "substantial public and environmental benefits over and above s 94 requirements. The council comes to the opposite conclusion. The evidence 13Expert evidence for the council was provided by Ms Bridget McNamara, a town planner and Ms Gabriel Morrish, an architect and urban designer and expert evidence for the applicant was provided by Mr Lewis Adey, a town planner and Ms Jan McCredie, an architect and urban designer. 14Mr Adey states that the bonus FSR should be available to the applicant on the basis that 878 sq m of publicly accessible and usable open space is provided for public use 24 hours a day and constitutes substantial public and environmental benefits. This area provides for: * high quality artistic lighting designed to be provided; * re-use of timber from warehouse to provide public art within the area; * a public art sculpture site is to be provided; * provision of a 2.4 m setback to McEvoy Street; * public art installation site at eastern end of proposed 2.4 m setback fronting McEvoy Street; * extensive native landscaping; * paving to council's requirement; * public seating; and * landscape upgrade and public seating on Fountain Street and * a median strip in Fountain Street. 15Ms Morrish rejects these works, as the area seen by Mr Adey as publicly accessible usable open space is required to make the proposal work. Without this space, Ms Morrish states that the commercial, retail and residential uses would have no access, light or outlook. It is an essential part of the scheme that must be provided, or neither building would be operationally functional. 16For this space to qualify as a "substantial public and environmental benefit", Ms Morrish states that it would need to provide public space or a link whose primary purpose is use for the public as a 24 hour, seven day benefit. It would need to be an added benefit to that offered by the proposal in addition to, or as a supplement to, any required spatial separation, and its purpose should be to provide additional amenity and value to the public. To be capable of being considered as a "substantial public and environmental benefit", it should be a fully public space and a space that the council would wish to have dedicated to them. This is not the case in this application. In this case, the space is intended to function as part of the communal open space and as a public access space. While the applicant's position is that this space will serve both purposes; Ms Morrish states this further undermines the applicant's argument that it is a public benefit. 17Ms Morrish further states that it is very difficult for this space to provide a usable common open space due to its public character, driven by the ground floor retail uses that are provided in both buildings. The open space will provide a pleasant outdoor area for use for the retail patrons but it is not really ideal as a communal open space for more private relaxation or residential amenity. Findings 18In balancing the competing evidence, the question to be answered is whether the works identified by Mr Adey constitute "substantial public and environmental benefits". In my view, the answer must be no. Even though cl 3.2 provides the opportunity for the provision of any other works or improvements at the discretion of the consent authority, and the list of identified works is not exclusive, I am not satisfied that the matters identified by Mr Adey are "substantial public and environmental benefits". 19I agree with Ms Morrish that the area of land relied upon by Mr Adey is an essential component of the development to enable access to the commercial tenancies fronting this area, and also the pedestrian access to the proposed units. I do not accept that the embellishment of this area, as described by Mr Adey, provides the necessary step to the bonus 1.5:1 FSR for the site. I also agree that the shared use of these works diminishes their value in terms of the test required for the bonus FSR. 20Also, the 2.4 m setback to McEvoy Street is a specific requirement in cl 3.1.1 and Map 3 of the DCP - Pt G, and the dedication or acquisition would have been a matter of negotiation between the parties in any event. 21Similarly, I do not accept that the proposed median strip in Fountain Street is a "substantial public and environmental benefit". This feature would have presumably been a necessary requirement if the access point raised traffic concerns on Fountain Street. The fact that the applicant volunteered to construct the median strip could not reasonably be seen to be a public benefit in these circumstances. 22I agree with the submission of Ms Duggan that it is open to the Court to approve the development with the proposed FSR, even if the Court found that the identified works were not substantial public benefits, as the controls are located in a development control plan. However, for reasons set out later in the judgment, I do not accept that proposal provides adequate internal amenity for some units. In my understanding of the plans, the internal amenity issue is directly related to the amount of floor area provided in the development. This manifests itself through the design of the proposed building, including the distribution of floor area over the site and the constraints placed on the design by the location and size of adjoining buildings, some located on the common boundary. Internal amenity The evidence 23The issue of internal amenity focused on 16 two level units (units 2.1 to 2.16) that contain an internal courtyard or light well, depending on the interpretation of the respective experts. The courtyard or light well is located towards the eastern end of the units due to the adjoining building being constructed to the common boundary(units 2.8 to 2.16) or to avoid windows overlooking the adjoining school (units 2.1 to 2.7). The courtyard or light well adjoins the stairs to the two level units, with bedroom 1 on the lower level and bedroom 2 on the upper level. 24Put simply, Ms Morrish maintains that the amenity of the bedrooms is unacceptable, given the absence of sunlight and ventilation, whereas Ms McCredie maintains that the design provides adequate solar access and ventilation through the opening glass doors on three sides of the internal courtyard or light well and the generous dimensions of around 3.2 m x 2.4 ms. Findings 25On this issue, I agree with Ms Morrish. I have little trouble in concluding that the area is appropriately defined as a light well. The RFDC defines a light well as: A shaft for air or light enclosed on all sides, or which has the potential to be enclosed by future adjoining development, and either open to the sky or glazed. 26In my view, the area cannot be defined other than a "light well" as it is clearly "a shaft for air or light enclosed on all sides". 27The RFDC addresses Building Amenity-Daylight Access (at pp 84 and 85) and relevantly states that it is appropriate to "limit the use of light wells as a source of daylight by prohibiting their use as the primary source of daylight in habitable rooms." Bedrooms are clearly habitable rooms. I note that the RFDC states that daylight "consists of skylight, being diffuse light from the sky, and, importantly, sunlight, direct beam radiation from the sun". 28In this case, the shadow diagrams did not address solar access to the bedrooms in question; however, the amount of solar access to these areas is not a difficult task based on the plans and given the 32 degree inclination of the sun in mid-winter. The result is that both bedrooms of the 16n units receive no direct sunlight. While the upper bedrooms of the units may receive more reflected light due to its closer proximity to the roof than the lower bedrooms, both bedrooms of each unit will still have poor and unacceptable amenity, even accepting the constraints imposed by the existing adjoining buildings. 29I do not accept that the daylight objectives in the RFDC are satisfied. These objectives are: + To ensure that daylight access is provided to all habitable rooms and encouraged in all other areas of residential flat development; + To provide adequate ambient lighting and minimise the need for artificial lighting during daylight hours; + To provide residents with the ability to adjust the quantity of daylight to suit their needs. 30I also do not accept that the natural ventilation objectives in the RFDC are satisfied. These objectives are: + To ensure that apartments are designed to provide all habitable rooms with direct access to fresh air and to assist in promoting thermal comfort for occupants; + To provide natural ventilation in non-habitable rooms where possible; + To reduce energy consumption by minimising the use of mechanical ventilation, particularly air-conditioning. 31The poor internal amenity for the bedrooms for units 2.1 to 2.16 is a significant negative aspect of the proposal and would warrant the refusal of the application for this reason alone. Building separation 32The issue of the 6 m separation between the proposed buildings and the existing buildings is not, in my view, a reason to refuse the application. Only 3 units are impacted (units 2.18 to 2.20) and with the existing fixed and frosted glazing on the adjoining building there are no visual or acoustic impacts. Orders 33The orders of the Court are: 1. The appeal is dismissed. 2. Development Application D/2010/1786 for the demolition of an existing building and the construction of a mixed use development at 145 McEvoy Street, Alexandria is refused. 3. The exhibits are returned. G T Brown 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. Decision last updated: 29 June 2011