Land and Environment Court New South Wales Medium Neutral Citation: Woodford Australia Pty Ltd v Lane Cove Council [2013] NSWLEC 1193 Hearing dates: 3,4 October 2013 Decision date: 15 October 2013 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is dismissed. 2. DA 30/2013 for the demolition of three existing shops and the construction of mixed retail/commercial/residential development at 38-42 Burns Bay Road, Lane Cove is refused. 3. The exhibits are returned with the exception of exhibits 1, A, B and D. Catchwords: DEVELOPMENT APPLICATION: demolition of three existing shops and the construction of mixed retail/commercial/residential development - excessive height - inadequate side setbacks - poor shop front design - poor amenity for the residential units Legislation Cited: Environmental Planning and Assessment Act 1979 Lane Cove Local Environmental Plan 2009 Cases Cited: Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986) Cripps J Category: Principal judgment Parties: Woodford Australia Pty Ltd (Applicant) Lane Cove Council (Respondent) Representation: Mr M Staunton, barrister (Applicant) Mr A Seton, solicitor (Respondent) Solicitors Wilshire Webb Staunton Beattie Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 10318 of 2013 Publication restriction: No Judgment 1COMMISSIONER: This is an appeal against the refusal of DA 30/2013 for the demolition of three existing shops and the construction of mixed retail/commercial/residential development at 38-42 Burns Bay Road, Lane Cove (the site). The development provides for: * Lower level 3 - basement parking, * Lower level 2 - basement parking/loading (vehicular access from Sera Street), * Lower level 1 - warehouse/retail, * Ground floor - retail (pedestrian access from Burns Bay Road), * Level 1 - retail/commercial, residential unit 3, and * Level 2 - residential units 1 and 2. 2The council maintains that the development should be refused because of; * excessive height, * inadequate side setbacks. * poor shop front design, and * poor amenity for the residential units. 3Other contentions relating to car parking, manoeuvring and floor space ratio (FSR) were not pressed following additional expert evidence, amended plans and/or additional conditions of consent. 4Additional evidence from commercial land owners and an interested community group was provided on the site inspection and supported the council contentions. Additional concerns related to loss of sunlight to existing commercial premises to the west and excessive bulk and scale largely brought about by the height of the development. The site 5The site is Lot 1, DP 550930 (38 Burns Bay Road), Lot 19, DP 530200 (40 Burns Bay Road) and Lot 21, DP 530200 (42 Burns Bay Road). It is generally regular in shape with a frontage of around 15.47m to Burns Bay Road, around 15m to Sera Street and varied depths of 50m to 52m. The site falls from its north-eastern corner at the front (Burns Bay Road) to the south-western corner at the rear (Sera Street) by approximately 7m. The site has an area of 778 sq m. Vehicular access is provided from Sera Street and pedestrian access from Burns Bay Road. 6Surrounding development comprises a mixture of commercial and retail developments that make up the Lane Cove Village. Relevant planning controls 7The site is within Zone B2 Local Centre under Lane Cove Local Environmental Plan 2009 (LEP 2009). The proposal is permissible with consent as "Commercial premises" and "Shop top housing". Clause 2.3(2) provides that: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 8The relevant zone objectives are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. (dot point 1) • To encourage urban design maximising attractive public domain and adequate circulation space throughout the Lane Cove town centre for current and future users. (dot point 6) 9Clause 4.3 addresses Height of buildings and relevantly states: (1) The objectives of this clause are as follows: (a) to minimise any overshadowing, loss of privacy and visual impacts of development on neighbouring properties, particularly where zones meet, and (b) to maximise sunlight for the public domain, and (c) to relate development to topography. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. 10The Height of Buildings Map identifies the site as "J" with a maximum building height of 9.5m. It was agreed that the proposed building has a maximum height of 17m, thereby breaching the maximum height by 7.5m. The applicant relies on cl 4.6 that provides the opportunity for exceptions to development standards. 11Lane Cove Local Development Control Plan (the DCP) applies. Part D provides requirements for Commercial Development and Mixed Use, specifically Building Form (pt 1.1), Street Frontage Activities (pt 1.1.3), Setbacks (pt 1.1.6), Development within Lane Cove Village Centre - (B2) Local Centre and Surrounds (pt D.3) and Shop Top Housing within Lane Cove Village Centre (pt 3.7). Height 12Expert town planning evidence was provided by Mr Robert McGuiness for the applicant and Mr Stephen McMahon for the council. They agreed that the maximum departure from the height standard in cl 4.3 is 7.5 m. Mr McGuiness relies on cl 4.6 to support the variation to the maximum height standard. 13Clause 4.6 relevantly states: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (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 (b) the concurrence of the Director-General has been obtained. 14Mr McGuiness provided justification for the departure in the Statement of Environmental Effects (SEE) submitted with the development application (the original plans) even though the SEE related to a different version of plans considered at the hearing. It was argued that the contents of the SEE were supplemented by the oral evidence of Mr McGuiness on the specific requirements of cl 4.6 for the plans discussed at the hearing (the amended plans). 15Mr McGuiness stated that the breach of the height standard occurs largely because of the extreme slope of the site. To achieve the FSR desired for the site in LEP 2009 and provide a continuous floor level for retail and commercial floor areas, a breach of the height standard is necessary. If considered in the context of adjoining development, which is nearly double the allowed height in places, the height limit is unreasonable for the site, particularly given that the proposal fits visually well with surrounding development in Sera Street. At the Burns Bay Road frontage, the development presents as two storeys at the boundary and satisfies the height standard although the upper residential level is located above the 9.5 m height but is set back from the boundary. Mr McGuiness maintains that this level is necessary for the viability of the proposal and in any event, is not visible from Burns Bay Road or surrounding roads although angled views would be available until adjoining properties are redeveloped in the future. 16In his opinion, the proposal is consistent with the objectives of the height standard, the objectives of the zone and is therefore in the public interest. 17Mr McMahon has a different view but acknowledges that the terrain of the site presents a significant challenge to achieving a commercially efficient built form outcome within the height standard at the rear of the site. He accepts that the development satisfies the height standard at the Burns Bay Road frontage and is consistent with the prevailing character of adjoining developments. However, there is no valid reason to support a variation to the height away from the frontage because of the visual and shadow impacts on the property to the west. Also, Level 2 will be visible from some locations around Burns Bay Road and Rosenthal Avenue. The deletion of the top level would address this issue as well as provide a more sympathetic presentation to Sera Street, even though a breach of the height standard would still exist. 18The location of the greatest height exceedence is at the rear of the site where it presents as a five storey building in the streetscape and is inconsistent with the prevailing height character on the western side of Sera Street, being three to four storeys, with the exception of the Market Square development to the west. Of this development, Mr McMahon states that it is a recent addition to Lane Cove Village but approved under a different planning regime than exists at present. It also contains community facilities, as well as commercial and retail functions, and its form reflects its role, function and landmark status in Lane Cove Village. 19Mr McMahon states that the primary context in which the proposal should be considered is the properties in the immediate vicinity of the site. Importantly, the numerical height standard is a fundamental part of the decision making process and that an absence of environmental impact cannot reasonably be a reason to depart from a development standard. 20According to Mr McMahon, there is no compelling reason why it is in the public interest to deviate from the adopted standard. On the contrary, it would be against the public interest, as it would set an undesirable precedent for similar inappropriate developments. Height - findings The assessment framework 21Mr McGuiness and Mr McMahon agree that the proposal exceeds the numerical standard in cl 4.3(2) and also the extent of the exceedence. While the starting place for considering height is cl 4.3, a non compliance is not fatal to the application as cl 4.6, provided flexibility in the application of development standards. To grant consent to a development application that exceeds a development standard, it is necessary that: * the justification must be in the form of a "written request" (cl 4.6(3)), * the written request must justify the contravention of the development standard by demonstrating that firstly, "that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and "that there are sufficient environmental planning grounds to justify contravening the development standard" (cl 4.6(3)(b)). * consent must not be granted unless the Court is satisfied that the written request has adequately addressed those matters in firstly, cl 4.6(3)(a) and (b) ((cl 4.6(4)(i)) and secondly, the proposal is consistent with the applicable development standard objectives and zone objectives ((cl 4.6(4)(ii)). 22Clause 2.3(2) provides that the Court must have regard to the zone objectives. The "written request" 23In response to the need for the variation to be in the form of a "written request" (cl 4.6(3)), Mr Staunton submitted that this requirement is satisfied by the SEE, submitted with the development application, and the additional oral evidence of Mr McGuiness provided at the hearing even though the SEE addressed a development that had a greater height, a different mix of residential to commercial/retail space and what appears to be additional floor area. While Mr Seton did not press the point that the "written request" did not specifically address the amended plans before the Court, it is a not a matter without some doubt although the point is ultimately of no consequence, in this case, given the adverse comments later in the judgment on height and the amenity of the residential units. The development standard objectives 24The relevant height standard objectives are: (a) to minimise any overshadowing, loss of privacy and visual impacts of development on neighbouring properties, particularly where zones meet, and (b) . (c) to relate development to topography. 25On the question of whether the development relates to the topography, I agree with the conclusion of Mr McMahon that it does not, from both Burns Bay Road and Sera Street, for a number of reasons. As a starting point, I accept that the word "relate" in objective (c) (and contrary to the suggestion of Mr McGuiness) does not mean that the height of the building must have a direct relationship with the topography or that there must be multiple steps in the floor level to maintain the same height with the steep topography to satisfy objective (c). The word "relate" also does not mean that a development has to generally step down the site to satisfy objective (c). If this was taken to the extreme, it would be possible to have an even higher building and provided that the additional levels stepped down the site, it could be argued (unreasonably, in my opinion) that the development relates to the topography of the site and consequently be consistent with objective (c). 26To satisfy objective (c), there must be some relationship between the building and the topography and while Mr McGuiness and Mr McMahon disagreed on whether the development relates to the topography, the disagreement was fundamentally over the extent of the variation to the height standard and not whether it should be strictly applied. 27From Burns Bay Road, at the street frontage, the development presents as two storeys and complies with the maximum height standard. Level 2 is set back between 10 m and 12 m from the street frontage and is fully above the maximum height standard, excluding the balcony area. I agree with Mr McMahon that this is unacceptable as firstly, it is inconsistent with the desired future character established in the DCP for Burns Bay Road (objective 9, pt 3.1 in the Desired future character for the Lane Cove Village of the DCP) and secondly, it will be visible, in part, from sections of Burns Bay Road and Rosenthal Avenue. 28While this visibility may be lost with any redevelopment of adjoining properties in the future, this does not justify the significant departure from the maximum height standard. While flexibility is available in the application of development standards, it does not follow in my view, that simply because the non-complying height of a building may not able to be seen that this, in itself, justifies a breach of the height standard. The 9.5 m standard must have some work to do in considering the appropriate height of a building on the site. 29As referred to by Mr McMahon, Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986) Cripps J, makes the following pertinent comments on a SEPP 1 objection, although I see no reason why the comments are not relevant in this case: ....it now established that is not sufficient merely point to what is described as absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose. 30I also agree with Mr McMahon that the five-storey presentation to Sera Street is unacceptable given the predominant three and four storey presentation to this street apart from the Market Square development to the west. I accept the explanation of Mr McMahon that while Market Square it is a recent addition to Lane Cove Village it was approved under a different planning regime than exists at present. From the councils planning report on this development (Exhibit 7), the development satisfied "the maximum height of any residential component" in cl 4 of the DCP that contained the height requirements at the time. The Market Square development also contained land other than commercially zoned land and provided for community facilities, as well as commercial and retail functions. For these reasons, I do not accept that this development provides a valid basis to support the height of the proposed development. 31The breach of the height standard is more obvious from Sera Street although the setback of Level 2 limits the opportunity to view this level. From Sera Street, Lower level 3 is below ground level, Lower level 2 has a nil setback, Lower level 1 has a setback between 1.2 m and 1.6 m, Ground floor and Level 1 have a setback between 5.5 m and 6 2 m and Level 2 has a building setback between 10 m and 14.1 m but the balcony extends between 2.5 m and 3.3 m from the rear boundary. Levels 1 and 2 and most of the Ground floor breach the height standard at the boundary with Sera Street although the site view highlighted other nearby buildings also in breach of this standard. It was not clear from the evidence, however given that Market Square was approved under a different planning regime it is likely that other nearby buildings may have been approved under the same planning regime. 32The proposed development will not be in the public interest as I do not accept that the development is consistent with the objective (c) of the height standard, in that the proposal does not relate to the topography". It follows that consent must not be granted, pursuant to cl 4.6(3)(a) because compliance with the development standard is not unreasonable or unnecessary in the circumstances of the case and pursuant to cl 4.6(3)(b) that there are insufficient environmental planning grounds to justify contravening the development standard. Also, consent must not be granted, pursuant to cl 4.6(4)(ii) because the proposed development will not be in the public interest because it is consistent with objective (c) of the height standard. 33Of the other development standard objectives, it was agreed that the development raised no issue in relation to loss of privacy. The question of overshadowing was not adequately addressed at the hearing, as no shadow diagrams were available for the amended plans. Shadow diagrams were prepared for the original plans and Mr McGuiness and Mr McMahon attempted to adjust these plans for the amended plans however there was no agreement as to the effect of overshadowing on the property to the west. If no other matters warranted the refusal of the application then further information could have been provided on overshadowing and a further consideration made of this matter. 34The breach of the height standard and the lack of any side setbacks, particularly on Level 2, also results in a development that has a visual bulk not anticipated for the area, particularly when viewed from the public area of Sera Street and the property to the west. I am satisfied that the additional bulk creates an unacceptable visual impact on the neighbouring property to the west, such that the development would be inconsistent with that part of objective (a) that relates to "visual impacts of development on neighbouring properties". 35For completeness I will briefly deal with the other outstanding contentions. The zone objectives 36The relevant zone objectives are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. (dot point 1) . • To encourage urban design maximising attractive public domain and adequate circulation space throughout the Lane Cove town centre for current and future users. (dot point 6) 37Mr McMahon states that the zone objective at dot point 1 is not satisfied as the configuration of the Ground floor is poorly conceived as it is long, narrow and drawn out with minimal exposure to the street, the internal tenancies have no address or exposure and are isolated from pedestrians. Mr McGuiness maintains that the proposal is entirely consistent with this objective. 38On this matter, I agree with Mr McGuiness that the configuration and use of future tenancies is likely to be settled through future development applications. Even if this objective relates to the internal layout of the Ground floor (and there must be some doubt), the configuration of the Ground floor limits exposure to the street. Clearly, the need for a street presence and the ability to attract passer-by trade will depend on the particular uses: none of which were detailed in the application. In the absence of these details, any suggestion that a vibrant active ground floor will not be achieved is not supportable. While the entrance to the Ground floor is somewhat clumsy, it is not a matter that would warrant the refusal of the application and I am satisfied that it could easily be addressed through further discussions between the parties, if the application was not to be refused. 39Mr McMahon states that the zone objective at dot point 6 is not satisfied as the metal screen grill is unattractive and hostile in appearance when viewed from the public domain. Again, it is not a matter that would warrant the refusal of the application and I am satisfied that it could easily be addressed through further discussions between the parties, if the application was not to be refused. In note that security grills are permitted although they are required to be transparent (pt 1.1.3 f) and pt 3.4 c) of the DCP) 40For the reasons in the preceding paragraphs, the development is not inconsistent with the relevant zone objectives in dot point 1 and dot point 6. 41The test imposed by cl 2.3(2) is addressed in the previous paragraphs. Residential amenity 42Mr McMahon states that not one bedroom in either residential units 1 and 2 on Level 2 enjoys an external aspect. All bedrooms rely on an enclosed internal courtyard for sunlight, aspect and amenity. This is unreasonable and symptomatic of poor design, that at least one bedroom in each unit does not have any external aspect and views over the Burns Bay Road and Sera Street. Reliance on internal courtyards for all bedrooms, where all bedrooms are subject to opposing windows, albeit in the same unit across the courtyard, introduces unreasonable and unnecessary acoustic and privacy impacts for future occupants of these units. 43Mr McGuiness states both units on Level 2 have excellent solar access with living areas being orientated almost due north. Both also have large open space areas with northern sun access, views to the north and private open space area directly off the bedrooms, which also increases cross flow ventilation. Unit 2 also has unlimited views to the south. Mr McGuiness states that it is not necessary, or necessarily desirable for bedrooms to have external views in shop to housing. Visual and acoustic privacy for bedrooms in a shop top housing development in a commercial area is more desirable. Unit 3 on Level 1 has unlimited views to the south and a large balcony with bedrooms facing the south facing balcony. 44Mr McGuiness further states that the design of the residential component of the development is characteristic of shop top housing; the purpose being to encourage night time surveillance and maximise the use of available resources. While access to the units is via lifts and fire stairs that are shared with the retail/commercial tenancies, Mr McGuiness maintains that providing a separate entry would defeat the purpose of encouraging this type of housing. 45On the question of amenity for future occupants of the residential units, I agree with Mr McMahon that it is unacceptable and sufficiently serious to warrant the refusal of the application for this reason alone. As a starting point, and contrary to the evidence of Mr McGuiness, I see no reason why future resident of shop top housing should be subject to a level of amenity significantly lower than would be expected in other forms of medium or high density residential development. 46In my view, the residential amenity is unacceptable for a number of reasons. First, it is unreasonable that future residents should share access arrangements with patrons of the retail/commercial uses. While pt 3,7 a) provides that "entrances to residential uses be provided from both the principal street and rear lane", I am not satisfied that this could reasonably mean that future residents and patrons of the retail/commercial uses should share lifts. I presume the lift marked "Goods lift" is to be used only for goods deliveries to the retail/commercial uses. The potential conflict is exacerbated on Level 1 where residents and patrons of the retail/commercial uses also share a common foyer, as well as the lifts. 47Second, solar access is unacceptable for the bedrooms on Level 2. I agree with Mr McMahon that for all bedrooms to rely on an enclosed internal courtyard for sunlight, aspect and amenity is unreasonable and symptomatic of poor design. In my assessment, the bedrooms would receive minimal, if any direct solar access and certainly not "the minimum three hours direct sunlight between 9 am and 3 pm on 21 June" from enclosed internal courtyard (pt 1.11 c) of the DCP). I note that the objective of solar access seeks "to provide reasonable solar access to habitable rooms...of new...developments".(pt 1.11 of the DCP). The bedrooms on Level 2 are inconsistent with this objective as they are habitable rooms and do not receive reasonable solar access. 48The development, at Level 2, provides no side setbacks despite the requirements for a 6 m side setback on both sides (pt 1.1.6 of the DCP). While this is clearly impractical, given the 15 m width of the site, the strategic use of side setbacks could be used to provide direct solar access to at least some bedrooms. 49Third, the concerns of Mr McMahon over acoustic privacy are also valid given the size of the internal courtyard and the relationship of the windows facing this courtyard. 50Fourth, unit 3 on Level 1 is also unacceptable in terms of solar access. This unit is south facing and in the absence of any solar access assessment, I would be confident that all rooms and the large balcony would receive minimal or no direct solar access between 9 am and 3 pm on 21 June. Again, this is inconsistent with the objective of solar access in pt 1.11 of the DCP. Orders 51The orders of the Court are: 1. The appeal is dismissed. 2. DA 30/2013 for the demolition of three existing shops and the construction of mixed retail/commercial/residential development at 38-42 Burns Bay Road, Lane Cove is refused. 3. The exhibits are returned with the exception of exhibits 1, A. B and D. ____________________ 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: 15 October 2013