Land and Environment Court New South Wales Medium Neutral Citation: Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1009 Hearing dates: 17 December 2012 Decision date: 16 January 2013 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is upheld in part. 2. The development application for a mixed use building at 137-141 Bayswater Road, Rushcutters Bay is approved, subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 5 and A, may be returned. Catchwords: DEVELOPMENT APPLICATION: mixed commercial/residential development. Deferred commencement condition. Whether balconies have "external wall" or "outer wall" and are included as gross floor area for purpose of calculating floor space ratio. Legislation Cited: Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 Sydney Local Environmental Plan 2012 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings State Environmental Planning Policy (Infrastructure) 2007 Cases Cited: Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 Blackmore Design Group Pty Ltd v North Sydney Council [2002] NSWLEC 279 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289 Category: Principal judgment Parties: Haralambis Management Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Mr C McEwen SC (Applicant) Mr A Hawkes (Respondent) Solicitors Wilshire Webb Staunton Beattie (Applicant) City of Sydney Council (Respondent) File Number(s): 10963 of 2012 Judgment 1This is an appeal against the deferred commencement consent of a development application (D/2012/321) granted by the Council of the City of Sydney (council) for a mixed use building at 137-141 Bayswater Road, Rushcutters Bay (site). 2The key contention raised by council is whether the proposed balconies should be included as gross floor area (GFA) for the purpose of calculating the floor space ratio (FSR) of the development under Draft Sydney Local Environmental Plan 2012 (LEP 2012). Site and locality 3The site is located on the southern side of Bayswater Road. It is part of an 'island block' that is bounded by Bayswater Road to the north, MacLachlan Avenue to the east and the Eastern Suburbs railway to the south. It is generally rectangular, with an area of approximately 506 sq m. 4The site contains a three storey commercial building and adjoins other buildings of similar scale. Development in the surrounding area is a mixture of commercial and residential buildings of various heights and styles. The Vibe Hotel (100 Bayswater Road) is diagonally opposite the site and adjoins Rushcutters Bay Park. Background and proposal 5On 15 October 2012, the council granted deferred commencement approval for "demolition of existing building and construction of an 8 storey mixed use building with 28 residential units, 2 levels of basement car parking for 16 vehicles, and a ground floor shop". 6The deferred commencement requirements included: (1) The total floor space and floor space ratio (FSR) of the proposal (as defined by the standard instrument) is to be reduced to comply with the Draft Sydney LEP 2011 FSR of 3.75:1. In this regard, the current design of the lobbies and balconies is such that they are to be included in the calculations of floor space. A redesign of the balconies by removing the glass elements and making the balconies more open would allow them to be excluded from the calculation of floor space. In achieving this compliance, design excellence must be maintained, retained and only modified accordingly to achieve the above. (2) Safe vehicle access is to be provided within the building without relying on the public domain to comply with AS 2890.1-2004. This may be in the form of a widened driveway or a passing bay within the building. The intent of this condition is to allow an area for a vehicle to wait on site at times when the driveway and access are in use. 7On 17 October 2012, the Court granted leave to amended plans which present a different facade treatment to Bayswater Road to that determined by the council. The balconies on the northern facade have a solid balustrade with glass bi-fold windows and concrete blade walls. The balconies on the southern façade have a full height aluminium framed glass louvres. If the balconies are included as GFA, the proposal has an FSR of approximately 4.85:1 (calculated in accordance with LEP 2012) and a height of approximately 25 m (to the ceiling of the topmost habitable level) and 26.55 m to the top of the lift overrun. 8The applicant is appealing the above deferred commencement requirements. Requirement (2) has been resolved through the amended plans, the agreement of the experts and the imposing of operational conditions. Requirement (1) remains in dispute. Planning controls 9The site is zoned 10 - Mixed Uses under South Sydney Local Environmental Plan 1998 (LEP 1998). The proposal is permissible with consent. 10Sydney Local Environmental Plan 2012 (LEP 2012) commenced on 15 December 2012. The site is zoned B4 Mixed Use under LEP 2012 and is permissible with consent. LEP 2012 includes a savings provision which provides: 1.8A Savings provision relating to development applications (1) If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced. 11The parties agree that as LEP 2012 has commenced, it is imminent and certain and is to be given significant weight. 12South Sydney Development Control Plan 1997 (DCP 1997) applied to the site at the time the application was lodged and determined by council. It permitted a FSR of 2:1 and a height of 18m and the proposal significantly exceeds these controls. This was considered acceptable in the assessment report to council of 9 October 2012 (the Planning Report) due to the imminence of LEP 2012, but the "exceedance of the draft FSR control was not considered acceptable as it will increase the bulk of the proposal and its presentation and impacts on the streetscape". The parties agree that the controls in DCP 1997 have been effectively abandoned. 13Further, with the commencement of LEP 2012, Sydney Development Control Plan 2012 (DCP 2012) has also commenced. DCP 2012 repeals DCP 1997 and its does not include a savings provision of relevance to the application. The controls for height and FSR in LEP 2012 and the provisions in DCP 2012 therefore establish the desired future character for the site and other land in the "island block". 14Clause 4.3 of LEP 2012 permits a maximum building height of 27m. The proposal complies with this control. Clause 4.4 of LEP 2012 permits a FSR of 3.75:1. The parties disagree whether the proposal complies with this control and, if not, whether it meets the criteria for exceptions to development standards in cl 4.6 of LEP 2012. This disagreement centres on the definition of GFA in LEP 2012 which states: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above. 15The parties disagree on whether the balconies are floor space within the "internal face of external walls" and, if so, whether they have "outer walls" less than 1.4 m high and are therefore excluded from GFA. 16State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) establishes ten design principles for residential flat development. Under SEPP 65, the Residential Flat Design Code (RFDC) must be considered. 17State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) applies as the site adjoins a classified state road. The Roads and Maritime Services (RMS) granted concurrence to the proposed vehicle crossing onto Bayswater Road. Clause 102 subdivision 3 of SEPP Infrastructure sets acoustic criteria for new residential uses for sites with 40,000 vehicles passing per day. 18The application was referred to RailCorp as the proposal is within close proximity to rail infrastructure and involves excavation for two storeys. RailCorp granted its concurrence subject to a number of conditions, including the requirement that openings within 20m of a railway line must be designed to prevent objects being thrown from them. Evidence 19The hearing was conducted on site. The Court heard expert planning evidence from Mr S McDonald, for the applicant, and Mr K Nash, for the council. The experts agree that the council had effectively abandoned the FSR control in DCP 1997 and that the contention about FSR compliance relates to the definition of GFA in LEP 2012, principally whether the balconies are included in the calculation. They agree that the lobbies are excluded from GFA as the louvres are permanently open. If the GFA of the balconies (515.2 sq m) is included the proposal has a FSR of 4.85:1, if they are excluded, the proposal has a FSR of 3.83:1. The experts agree that the difference between an FSR of 3.83:1 and that permissible under LEP 2012 of 3.75:1 would be immaterial in built form and compliance could be achieved through a condition of consent. 20In Mr McDonald's opinion, whether or not the balconies are included or excluded as GFA is of no real consequence as the council has "approved the building height, the building envelope, the density in the form of the number of units, and the location and size of balconies both front and rear". Compliance with the FSR can be achieved by removing the glazed elements or "making the balconies more open" which does not change the overall height, bulk, scale or appearance of the building. 21Mr McDonald considered that the question of whether the balconies are included as GFA centred on the term "external wall" and "outer wall" in the definition of GFA. He referred to structural, BCA and surveying advice that concluded that the glass bi-fold windows and louvres of the front and rear balconies do not constitute an "external wall" principally because they: * do not provide fire resistance, * are not load bearing and do not provide vertical structural support or horizontal restraint; * do not provide weather tight resistance. The balconies will need to be tiled and drained with a step down between the internal area; * Do not provide acoustic treatment. 22Mr McDonald noted that at any time the occupants may have the windows or louvres fully open, partially open or closed to control the amenity of the balconies in response to environmental conditions including road/train noise or weather. They do not perform the function of an "outer wall". He referred to the RFDC and stated that the design of the proposed balconies met the objectives and design guidelines which recognise that the usefulness of balconies can be improved through "operable walls" and should respond to local circumstances. It recommends that FSR should exclude balconies, including those enclosed by operable screening devices. This approach has been adopted by council in nearby developments where a range of screening devices have been approved for balconies, as well as the recent approval for additions to the Vibe Hotel, which includes enclosed balconies. 23Under cross examination, Mr Nash accepted that the "external wall" of the building is the wall between the living room and balcony area. However, he considered that the purpose of the GFA definition is to include any balcony that is enclosed by "outer walls" above 1.4m high. He accepted that the fixed open louvres above a solid balustrade to the southern lobby area should be excluded from the gross floor area calculations as the area is not "enclosed". However, the proposed enclosure of the northern balconies by bi-fold windows over a solid balustrade and the southern balconies by aluminium framed glass louvres are an enclosing structure, which form the outer wall of the building and should be included as GFA. 24In Mr Nash's opinion, when closed the bi-fold windows and louvres will provide a "fixed wall" that protects the balconies in a similar manner that windows and walls protect the interior of a building. The balconies would not have permanently open elements, which is distinguishable from the "operable screens " referred to in the RFDC and the louvred screens on balconies in other nearby developments. 25Mr Nash noted that other residential flat buildings fronting Bayswater Road and New South Head Road did not have enclosed balconies and that the "enclosure" of the balconies in the development was not required for acoustic or other amenity considerations. 26In Mr Nash's opinion, the enclosure of the northern balconies would have a negative streetscape impact as it will increase the bulk of the building when the bi-fold windows are closed and reduce the "varying depth and shadow which will provide a façade with more interest than an enclosed facade". The non compliance with the FSR will also set an undesirable precedent for the development of the other land in the "island block". Submissions 27Mr McEwen's primary submission, for the applicant, is that under the definition in LEP 2012, GFA is the floor area of the building that is "measured from the internal face of external walls". The bi-fold windows and louvres of the balconies are not the "external wall" of the building because they have no structural or safety function. Consequently, the floor area of the balconies is not included as GFA. His secondary submission is that even if the walls of the balconies are external, under the definition of GFA their floor area can be excluded as the bi-fold windows and louvres are not "outer walls". 28Further, Mr McEwen submits that if the bi-fold windows and louvres are "outer walls" and the floor area of the balconies is therefore included as GFA, the development would meet the criteria in cl 4.6 of LEP 2012 for an exception to the FSR development standard. He submits that there is no contention that the proposal does not meet the objectives of the FSR control. The development is of appropriate density, reflects the desired future character of the locality and does not have adverse impacts. The balconies are an appropriate response to the proposal's proximity to a major road and railway and are similar to other balconies, which have been recently approved by council and not included as GFA. Mr McEwen submits that the deferred commencement condition which requires compliance with the FSR control in LEP 2012, should be deleted. 29Mr Hawkes, for the council, submits that the balconies form the "external wall" of the building and their floor area should be included as GFA. The bi-fold windows and louvres form an "outer wall" which encloses the balconies above 1.4 m and therefore the floor area should not be excluded from GFA. In his submission, structural, BCA and surveying are not methods by which the "external wall" or "outer wall" is to be determined for planning purposes. When closed, the bi-fold windows and louvres will appear no different and serve the same function as an "external" or "outer" wall. The proposal therefore significantly exceeds the maximum FSR in LEP 2012 and a variation under cl 4.6 is not justified. 30Mr Hawkes submits that the bi-fold windows and louvres above 1.4 m should be deleted or the building reduced in size to comply with the FSR control in LEP 2012. The deferred commencement condition should therefore be imposed. Findings 31The key question before the Court is whether the balconies are GFA and, if so, whether the deferred commencement condition should be imposed which requires the proposal to comply with the FSR requirements of LEP 2012. 32LEP 2012 was a draft LEP when the application was lodged and although it has now commenced, it includes a savings provision and therefore, in its terms, does not apply to the application. However, the LEP is imminent and certain and should be given significant weight such that the proposal should be consistent with the objectives and planning intent of the new plan (see Blackmore Design Group Pty Ltd v North Sydney Council [2002] NSWLEC 279 and Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289). 33Similarly, DCP 2012 was a draft when the application was lodged and has commenced with the making of LEP 2012. The DCP does not include a savings provision relevant to the application and it repeals DCP 1997. DCP 2012 should not be given determinative weight but should be taken into consideration, particularly in determining the desired future character for the "island block" (see Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 and Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472). A copy of DCP 2012 was not tendered into evidence and I note that the Planning Report did not consider this DCP. 34Under cl 4.5(2) of LEP 2012, the definition of FSR is: The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. 35It is therefore necessary to determine the GFA of a building in order to determine its FSR. The objectives of the FSR control are set out in cl 4.4(1) of LEP 2012 as: (a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality. 36Under the definition of GFA in LEP 2012, the floor area of balconies that are within the "internal face of external walls" are included as GFA. The definition also provides for balconies (which are within external walls) to be excluded from GFA, but only "with outer walls less than 1.4m high". 37To determine whether the balconies are GFA, it is first necessary to ascertain whether the walls of the balconies in the proposal are "external walls". If they are not, then the floor area of the balconies is not GFA and the proposal complies with the maximum FSR in LEP 2012. If they are, then the floor area of the balconies is included as GFA, unless the exclusion for balconies applies. Are the walls external? 38Mr Nash and Mr McDonald generally agree that the "external wall" of the building is the wall between the living room/bedrooms and the balconies. If this is the case then no further enquiry is required as the balconies are not within the external walls and are therefore not GFA. However, I do not accept that this is the case. 39The floor area of the proposed balconies is within the structure of the building formed by the floors, the side and rear walls and the roof. The concrete blade walls, balustrades and bi-fold windows form the front façade of the building and the glass louvres form part of the rear façade of the building. 40The walls of the living rooms and the bedrooms are designed to meet fire, acoustic and weather proofing requirements but it is not clear whether they are structural. The living room walls are setback from the street frontage of the building (between about 2m and 6m) and it is unlikely that they would be read as the façade of the building when viewed from the public domain. 41There is no definition of "wall" or "external" in LEP 2012 and consistent with the principles of statutory construction, the natural and ordinary meaning should be used. The Macquarie Dictionary defines "wall" to include the following meaning: Noun 1. an upright structure of stone, brick, or similar material, serving for enclosure, division, support, protection, etc., as one of the upright enclosing sides of a building or a room, or a solid fence of masonry. 42The concrete blade walls, balustrades and bi-fold windows at the street frontage of the building are a "wall". Similarly, the glass louvres are a "wall". 43The Macquarie Dictionary defines "external" to include the following meanings: Adjective 1. of or relating to the outside or outer part; outer 3. situated or being outside something; 44The "walls" of the balconies relate to the outside and form the outer part of the building. They are therefore external walls. While they may not be structural or meet acoustic or fire requirements, I do not accept that this is necessary in determining whether the wall is external for the purpose of GFA and FSR. I note that the structural advice, which Mr McDonald relies on, states that the glass bi-fold windows and louvres "do not provide any weather tight resistance". However, in the absence of any details, notations on the plans or evidence to this effect it is hard to understand the difference in waterproofing performance between these glass windows/louvres and the other windows/doors that are shown on the plans. 45For the purpose of determining GFA and FSR, the "walls" of the balconies are "external walls" which enclose floor space that, but for the exclusion for balconies, should be included as GFA. Are the balconies excluded from GFA? 46Under the definition in LEP 2012, terraces and balconies with outer walls less than 1.4 metres high are excluded from GFA. "Balcony" and "outer wall" are not defined under the LEP. A balcony is defined under the Macquarie Dictionary to mean: Noun 1. a balustraded or raised and railed platform projection from the wall of a building 47A balcony, such as a cantilevered balcony, without side walls or rooves would be outside the "external wall" of a building and would therefore not be included as GFA. However, a balcony that is enclosed by side and front "external walls" (even with openings) and a roof would be included as GFA, except for the exclusion for outer walls less than 1.4m high. 48In the Macquarie dictionary "outer" has a similar meaning to "external" being: Adjective 1. farther out; external; of or relating to the outside. 49The experts disagree on whether the balconies have an "outer wall" more than 1.4m high and should therefore be excluded from GFA. This disagreement centred on the degree of permanence and enclosure provided by the bi-fold windows and glass louvres, as they can remain open. 50While the bi-fold windows and louvres can be opened and can remain open due to the waterproofing and materials proposed for the inside of the balconies, they can also remain closed and the area used as a habitable room. There is little difference between the glass bi-folds windows and louvres and the glass widows/doors to the other parts of the building. As they are clear glass and infill the opening, they are different to other operable walls, such as timber or aluminium louvres or screens, which block light into and views out of a room behind the balcony. Such operable screens are adjusted to respond to environmental conditions such as sunlight and privacy. They would not remain permanently closed or be positioned to permanently infill an opening without adversely impacting on the amenity of the rooms within the unit. 51DCP 2012 (and DCP 1997) requires the provision of open space which may be in the form of balconies. For a balcony to be open space there should be a degree of openness and exposure to the elements. An area that can by choice be permanently enclosed and used as a habitable room would not be open space. 52The enclosure of the balconies responds to the "harsh environment" in which they are located and will provide considerable amenity to the units. DCP 2012 recognises that in some circumstances it is appropriate to enclose balconies, however s 4.2.3.7 (11) provides: Wind and acoustic treatments of of private open space must not result in the space being enclosed where it becomes part of the building envelope as defined by the BCA. Where, in the opinion of the consent authority, the private open space has the character of a habitable room it will be included as GFA. 53DCP 2012 defines a habitable room to be: Habitable room is a bedroom, living room or kitchen, dining room, study, play room and sun room. 54The BCA advice relied on by Mr McDonald states: The bi-fold windows and solid balustrade combine to from an enclosed verandah [as referenced in BCA F4.3 (borrowed light) and F4.7 (borrowed ventilation)] rather than an external wall of the building. .... The glass louvres form an enclosed verandah [as referenced in BCA F4.3 (borrowed light) and F4.7 (borrowed ventilation)] rather than an external wall of the building. 55The enclosed verandahs/balconies/sunrooms of the proposal have the character of a habitable room and should be included as GFA. 56For the reasons, which I have discussed above, the bi-fold windows and louvres would be an "outer wall" and the floor area of the balconies would not be excluded from GFA. The proposal therefore exceeds the FSR in LEP 2012. Should the deferred commencement condition be imposed? 57As discussed above, there is no statutory requirement to comply with the FSR control in cl 4.4 of LEP 2012 or that this standard may only be varied through cl 4.6 of LEP 2012. However, Mr McEwen submits that cl 4.6 is an appropriate mechanism to determine whether the proposed FSR of the development is acceptable. Further, he submits that the variation is appropriate as council has not raised contentions in respect of the merits of the proposal such as height, bulk or amenity issues. 58Clause 4.6 includes the requirement that consent must not be granted for a development that contravenes a development standard unless: (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and 59The objectives of the FSR standard include: (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality. 60The desired character of the locality is also established by the controls in DCP 2012. No assessment of the application against the DCP requirements has been undertaken in the Planning Report or the experts' evidence. Clearly the bulk of the building with enclosed balconies will appear different to the bulk of the building with open balconies which provide "varying depth and shadow to the façade". I accept Mr Nash's evidence that there are no particular circumstances that would warrant the enclosure of all the balconies in the building. Further, I note that DCP 2012 includes specific provisions for development on busy roads (s 4.2.5.3), which have not been addressed. 61In the absence of a consideration of the controls of DCP 2012, I cannot be satisfied that a variation of the FSR control in cl 4.4 of LEP 2012, to extent proposed, will result in a development that will adequately reflect the desired character for the "island block" and meet the objectives of the FSR control. 62I also do not accept that council's approval of other developments with enclosed balconies that have been excluded from GFA justifies approval of this application. 63The proposal does not comply with the FSR and height control in DCP 1997. Given its existing context, the proposal would not be approved under these controls. However, these controls have been effectively abandoned and repealed. LEP 2012 and DCP 2012 are new controls, which do not apply in their terms, but should be given weight. I must be satisfied that the proposal is consistent with the planning regime established by LEP 2012. For the reasons outlined above, I am not satisfied that a variation to the FSR control, to the extent proposed, is warranted or would be consistent with the planning intent of LEP 2012. 64Given that no issue was raised with other aspects of the proposal, I am satisfied that consent may be granted subject to the deferred commencement condition sought by council. Orders (1)The appeal is upheld in part. (2)The development application for a mixed use building at 137-141 Bayswater Road, Rushcutters Bay is approved, subject to the conditions in Annexure A. (3)The exhibits, except Exhibits 5 and A, may be returned. ______________________ Annelise Tuor Commissioner of the Court ANNEXURE A ********** 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: 16 January 2013