Land and Environment Court New South Wales Medium Neutral Citation: Torr & Torr Realty v Marrickville Council [2012] NSWLEC 1288 Hearing dates: 21 September 2012 Decision date: 17 October 2012 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. D/A No 201100625 for alterations and additions to an existing building to provide for an eight storey building development comprising 55 boarding rooms and a ground level retail/commercial tenancy and strata subdivision of retail space from boarding house at 244 – 244A Wardell Road, Marrickville is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 2 and A. Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing building to provide for a building comprising 55 boarding rooms and a ground level retail/commercial tenancy - number of storeys - building design - internal amenity of some proposed boarding rooms Legislation Cited: Environmental Planning and Assessment Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 65 Category: Principal judgment Parties: Torr & Torr Realty (Applicant) Marrickville Council (Respondent) Representation: Mr M Staunton, barrister (Applicant) Mr J Strati, solicitor (Respondent) Solicitors HWL Ebsworth Lawyers (Applicant) Marrickville Council (Respondent) File Number(s): 10449 of 2012 Judgment 1COMMISSIONER: This is an appeal against the refusal by Marrickville Council (the council) of D/A No 201100625 for alterations and additions to an existing building to provide for a building comprising 56 boarding rooms and a ground level retail/commercial tenancy at 244-244A Wardell Road, Marrickville (the site). 2The contentions raised by the council relate to: * the number of storeys, and * the internal amenity of some proposed boarding rooms, particularly those located on the northern façade and the overall level of solar access. 3The contention relating to the building design, particularly the 1.1 m north boundary setback and the treatment of the northern end of the front façade was addressed during the hearing by way a minor amendment and an additional condition of consent (see condition 64). The site 4The site comprises two separate allotments, being Lots 21 and 22 in DP 1109858. It is irregular in shape with a 12.41 m frontage to Wardell Road, a 12.19 m frontage to Murray Lane and side setbacks of 51.78 m and 54.01 m. The site area is 645.4 sq m. 5The improvements on each lot include a two-storey boarding house, each of which contains 11 boarding rooms. A detached garage is located at the rear of each lot with access from Murray Lane. 6The site forms part of a commercial/retail and residential precinct in close proximity to Dulwich Hill railway station. The relevant planning controls 7The site is zoned B1 Neighbourhood Centre under Marrickville Local Environmental Plan 2011 (LEP 2011). The proposed development is permissible with consent in this zone. Clause 4.3 provides for a maximum height of 23 m through the Building Height map and cl 4.4 provides for a maximum floor space ratio (FSR) of 3:1. The proposed development satisfies these requirements with a maximum height of 22.8 m and an FSR of 2.57:1. 8Marrickville Development Control Plan (the DCP) applies. The site falls within Clause 9.22 Strategic Context Dulwich Hill Station South (Precinct 22) of the DCP. Clause 9.22.5 provides site-specific planning controls including relevantly Site amalgamation (C4 and C5), Building height expressed in the number of storeys (C6), Boundary setbacks (C7) and Articulation zones (C10 and C11). 9The application is submitted under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) as a boarding house and applies by way of cl 26. Division 3 provides requirements for boarding houses. 10Clause 29 provides standards that cannot be used to refuse consent. These standards relate to FSR, building height, landscaped area, solar access, private open space, parking and accommodation size. There was agreement that the proposed development satisfies these numerical standards. 11State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) was referred to in the proceedings. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (the RFDC) (cl 30(2)(c)). The number of storeys The evidence 12Expert town planning evidence was provided by Mr Warwick Gosling for the applicant and Ms Harjeet Atwal for the council. 13Ms Atwal states that the development does not respect the context and scale of the existing streetscape and the desired future character of Precinct 22. The Wardell Road streetscape has a sloping topography with an overall fall towards Ewart Street. The Precinct 22 controls generally prescribe a stepped building form along the Wardell Road frontage. This stepped form is consistent with a 5/6-storey form the corner of Wardell Road and Dudley Street and a gradual step down to a 4/5-storey form at the intersection of Ewart Street and Wardell Street. This is based on a floor-to-ceiling height of 2.7 m. The use of a 2.4 m floor to ceiling height for the proposed development results in the additional storey, contrary to the massing controls for Precinct 22. The use of a 2.7 m floor to ceiling height is provided as a "rule of thumb" under the RFDC and as such should be incorporated within the proposed development. 14Ms Atwal states that the principles of SEPP 65 can be generally applied to the development and the proposed development is inconsistent with Principle 1 - Context for the reasons mentioned in the preceding paragraph. 15Mr Gosling states that the proposal is consistent with the desired future character for Precinct 22 as the proposal provides ground level retail floor space with residential floors above, in the form of boarding rooms with balconies fronting Wardell Road. Importantly, Mr Gosling states that the proposed development complies with the 23 m height limit floor for the site. The additional storey does not hinder the attainment of the stepping effect down Wardell Road. 16Mr Gosling states that SEPP 65 does not apply as the proposed development is not a residential flat building but in any event the building form satisfactorily addresses the context, given the compliance with the height and FSR. Findings 17There was no dispute that the proposed development satisfies the 23 m height limit identified on the Building Height map and the maximum FSR in LEP 2011. 18There was disagreement between Ms Atwal and Mr Gosling on the applicability of SEPP 65 however I accept the approach of Mr Gosling that this document does not strictly apply to the proposed development, not being a "residential flat building"(see cl 4(1) of SEPP 65)). Residential flat building is defined in cl 3 as; residential flat building means a building that comprises or includes: (a) 3 or more storeys (not including levels below ground level provided for car parking or storage, or both, that protrude less than 1.2 metres above ground level), and (b) 4 or more self-contained dwellings (whether or not the building includes uses for other purposes, such as shops), but does not include a Class 1a building or a Class 1b building under the Building Code of Australia. 19There was no dispute that the proposed building is "3 or more storeys" (pt (a)) however there was disagreement over whether the boarding rooms were "self-contained dwellings" (pt (b)). Given the size of the boarding rooms (minimum 12.3 sq m) and that occupants are provided with a communal lounge area and communal terrace area to presumably allow social interaction, outside the boarding rooms, it could reasonably be argued that the boarding rooms are not "self-contained dwellings" as the normal functions associated with a dwelling cannot be carried out within the boarding rooms. 20This conclusion is further supported by the submission of Mr Staunton that SEPP 65 does not apply to Division 3 Boarding houses because of the specific absence of a reference to SEPP 65 in this division. This needs to be compared to Division 1 In fill affordable housing and Division 5 Residential flat buildings where it states, at cll 16 and 39 respectively, that SEPP 65 applies to these divisions. 21Notwithstanding this, I agree with Mr Gosling that the principles in SEPP 65 are a helpful guide to consider the contentions raised by the council. 22The dispute centres on the number of storeys. Part C6 of Precinct 22 provides requirements for height that state: Building height C6 The height of the proposed buildings within the allotment shaded in the Figure (22.1a) must conform to the control diagram(s) in Figures (221b) and (22.1c). The height is expressed in number of storeys. 23The site falls within the allotments shaded in the Figure (22.1a). Figure (22.1b) identifies a Plan Diagram with the site having a height of 5 storeys within the articulation zone at the Wardell Road frontage and a height of 6 storeys for the remainder of the site with the exception of an area of Murray Lane, at the rear, where the specified height is 1 storey. Figure (22.1c) (see below) identifies Section Diagrams with the site having 5 storeys (six levels including ground level) and heights of storeys 1 to 5 of 3 m. This measurement presumably does not relate to a floor-to-ceiling height but a height between floor levels that includes around 300 mm for the thickness of the floor slabs. The height on the ground level appears greater than the upper levels although it is not dimensioned. As I understand, the additional height on the ground level was required to facilitate the use of this level for retail activities. 24On the disputed question of whether the proposed development respects the context and scale of the existing streetscape and the desired future character of Precinct 22 because of the additional storey, I prefer the conclusions of Mr Gosling for a number of reasons. 25First, and while I accept that consistent floor to ceiling heights for all future developments fronting Waddell Road may provide a consistent pattern in the streetscape, I am not satisfied that variation to the floor to ceiling heights on the upper levels of the development necessarily impacts on massing, context and scale and streetscape appearance, particularly given that there is compliance with the overall height of the proposed development. It could reasonably be assumed that compliance with the height requirement for future developments along Waddell Road would be required, and as such the stepping down along Waddell Road to follow the natural topography would still be achieved. If the objective is to provide for a stepped appearance down Wardell Road then this is best achieved through compliance with the height requirement. While a consistent stepping of floor levels may add to this consistency, I do not accept that it is necessary to satisfy the objective of stepping a building down Wardell Road. 26In my view, Ms Atwal's concerns over the streetscape and consistent appearance down the slope of Wardell Road would have greater weight, if the maximum building height were exceeded. The breach of the maximum building height has far greater potential to impact on the Desired future character than variations to the floor-to-ceiling heights of the upper levels. 27Second, I accept the evidence of Mr Gosling that given the range of permissible uses in the B1 Neighbourhood Business zone that it is possible that other non-residential uses uses, such as Business premises, Food and drink premises, Health service facilities, Medical facilities, may occupy the levels of any building above ground level and this could potentially necessitate floor-to-ceiling heights greater than anticipated by the 3 m distances between floors shown in Figure (22.1c). Clearly some flexibility needs to be included to accommodate the range of potential uses in the zone. 28Third, and while Ms Atwal questioned the use of a 2.4 m floor-to-ceiling height for the proposed development, in the context of the 2.7 m Rule of Thumb in the RFDC, she raised no concern over the 2.4 m height in relation to any potential adverse amenity impacts on the future of occupants of the boarding rooms. As I understand, her concerns over the 2.4 m floor to ceiling height focused solely on the streetscape and Desired future character impacts. 29Fourth, I agree with Mr Gosling that the proposed development is consistent with the Desired future character of Precinct 22. The relevant parts of cl 9.22.2 state: 9.22.2 Desired future character The desired future character of the area is: 1. To protect and enhance the predominantly mixed density residential character of the precinct and to continue its role in providing a mix of housing types close to public transport. 2. To protect and enhance the character of streetscapes and public domain elements within the precinct including views and vistas, prevailing subdivision patterns, building typologies, materials and finishes, setbacks, landscaping, fencing, open space, carriageway and footpath design and kerb and guttering. 3. . 4. .. 5. . 6. . 7. . 8. . 9. . 10. To facilitate urban renewal in appropriate locations, especially within the Dulwich Hill commercial centre with substantial increase in density as mixed use development. 11. To revitalise the neighbourhood shops within the Dulwich Hill commercial centre, including the consolidation of residential properties on the eastern side of Wardell Road and expansion into Dudley Street. 12. To take advantage of the characteristics of Dudley Street with low traffic; wide street carriageway; gentle footpath gradient; northern aspect and railway cutting that shields rail noise, to create a new high amenity mixed-use streetscape (maximising potential for shopfronts and residential oriented perpendicular to Dudley Street, widened footpaths, landscaping improvements, outdoor dining space and Local Area Traffic Management). 13. To ensure orderly development on masterplan sites in accordance with the principles of the masterplan vision, including allotment amalgamations where required, that are not detrimental to achieving the overall masterplan structure and achieve an efficient and high quality built outcome. 14. To support excellence in contemporary design. 15. To ensure the design of higher density development enables sustainable building design. 16. To ensure the design of higher density development provides adequate amenity for the intended occupants of the building and protects the residential amenity of adjoining and surrounding properties. 17. 18. 30I do not accept that the proposed floor levels impact, in any meaningful way, on the Desired future character of Precinct 22. I note that Ms Atwal's desire for a consistent floor-to-ceiling height along Wardell Road is not a specific objective in cl 9.22.2. 31I have little trouble in concluding that the proposal is consistent with the relevant parts of cl 9.22.2 in that it enhances the predominantly mixed density residential character (pt 1), enhances the character of streetscapes and public domain (pt 2), facilitates urban renewal (pt 10), revitalises the neighbourhood shops (pt 11) and create a new high amenity mixed-use streetscape (pt 12). 32I am satisfied that the principles in SEPP 65 relating to Principle 1 Context, Principle 2: Scale and Principle 3: Built Form are satisfactorily addressed by the proposed development. 33I am also satisfied that the proposed development satisfies the relevant objective of for the B1 Neighbourhood Centre Zone, being: To provide for housing attached to permissible non-residential uses in development of a type and scale compatible with the surrounding neighbourhood. 34While reference was made in the evidence to a 8-storey building, a reference to this level is to the communal terrace and covered BBQ area and the lift and stair well enclosures that provide access to this level. Ms Atwal and Mr Gosling agreed that the structures cannot be seen in the immediate vicinity of the site and that the use of the area and the structures are acceptable. Solar access 35Part 2.7.5.2 of the DCP states in relation to solar access for a boarding house: . .2.7.5.2 Other forms of residential accommodation . . C11 At least 65% of habitable rooms within a boarding house, a hostel or a residential care facility must provide a window positioned within 30 degrees east and 20 degrees west of true north and allow for direct sunlight over minimum 50% of the glazed surface for at least two hours between 9.00am and 3.00pm on 21 June. C12 Common open space within a boarding house, a hostel or a residential care facility must receive a minimum two hours of direct sunlight over 50% of its finished surface between 9.00am and 3.00pm on 21 . 36 Clause 29(2)(c) of SEPP ARH relevantly states: (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) . (b) (c) solar accesswhere the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, 37Relevantly, cl 8 of the Policy states: (8) Relationship with other environmental planning instruments If there is any inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency. 38Ms Atwal and Mr Gosling agree that the solar access requirements for common open space (C12) are satisfied however the development orientates only 28 boarding house rooms (50%) with a window positioned within 30° east and 20° west of true north and only 23 boarding house rooms (41%) receive two hours of sunlight to the glazed surface of their window. Ms Atwal notes that this needs to be compared to pt 2.7.5.2 of the DCP where at least 36 rooms (65%) are required. Mr Gosling notes that the relevant solar access requirements are contained within cl 29(2)(c) of SEPP ARH and as the proposed development satisfies this requirement than solar access cannot be a reason to refuse the application. 39I agree with the evidence of Mr Gosling that cl 29(2)(c) of SEPP ARH is the appropriate test for solar access and if compliance is reached, then consent cannot be refused on the basis of solar access. While the only requirement for solar access relates to communal living rooms (and not the broader issue of solar access to the boarding rooms), I accept that this is the intention of cl 29(2)(c) given that the heading of this subsection is titled "Solar access". If this subsection was meant to relate only to communal living areas, the heading would have reflected this fact. In any event, cl 8 provides primacy for SEPP ARH over any other environmental planning instrument, and in practical terms, the DCP. 40I note that Mr Gosling responded to Ms Atwal's evidence on pt 2.7.5.2 of the DCP notwithstanding that SEPP ARH prevails. He states that the future occupants will have good access from 23 boarding rooms and from the other rooms from the communal areas. The access to sunlight is limited due to the general east-west orientation of the site, the potential 6 storey development to the north and the consequent need to consider this potential form of development and the retention of the existing development on the site. Mr Gosling proposed additional solar access for units 20, 28, 36, 44 and 51 by way of skylights and this amendment has been included as condition 63. Orders 41The orders of the Court are: 1. The appeal is upheld. 2. D/A No 201100625 for alterations and additions to an existing building to provide for an eight storey building development comprising 55 boarding rooms and a ground level retail/commercial tenancy and strata subdivision of retail space from boarding house at 244 – 244A Wardell Road, Marrickville is approved subject to the conditions in Annexure A3. 3. The exhibits are returned with the exception of exhibits 2 and A. ____________ G T Brown Commissioner of the Court ANNEXURE A Amendments 14 November 2012 - Number "56" deleted and replaced with number "55". Annexure A replaced with updated conditions of consent. Amended paragraphs: Order No 2 and Annexure A 11 February 2013 - to include approval of the strata subdivision of the gound floor retail space Amended paragraphs: Order 2 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: 11 February 2013