Land and Environment Court New South Wales Medium Neutral Citation: Yassine v Burwood Council [2014] NSWLEC 1116 Hearing dates: 3-5 June 2014 Decision date: 20 June 2014 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: Development application: residential flat building, bulk, scale, setbacks, impact on heritage items. Legislation Cited: Burwood Local Environmental Plan 2012; State Environmental Planning Policy No 65 Design Quality of Residential Flat Development Texts Cited: Burwood Development Control Plan; Residential Flat Design Code Category: Principal judgment Parties: Ammar Yassine (Applicant) Burwood Council (Respondent) Representation: Mr P Clay SC (Applicant) Mr V Conomos Conomos Legal (Applicant) Mr A Seton Marsdens Law Group File Number(s): 10918 of 2013 Judgment 1Development Application No. 127/2013 was lodged with Burwood City Council by Mr Yassine on 16 September 2013 seeking consent to demolish an existing dwelling house and construct an eight storey residential flat building containing 12 apartments over basement carparking. The council refused consent and Yassine is appealing that decision. 2The issues in the case are whether the bulk, scale, size, building setbacks, landscaped areas of the proposal are appropriate and consistent with the existing and desired future character (DFC) of the area, parking is adequate and functional for the intended use, the development adversely impacts adjoining properties or would affect the heritage significance of heritage items within the vicinity of the site. The site and its context 3The site is known as No. 5 Hornsey Street, Burwood and is located on the north-eastern corner of its intersection with Oxford Street. It is a rectangular allotment having frontages of 13.31m and 30.48m to each street respectively and site area of 402.1sqm. 4A single storey dwelling house with detached garage stands on the site. Adjoining development to the east comprises a two storey dwelling (No 3 Hornsey Street (No 3)) and to the north two storey terrace houses (Nos 34 and 36 Oxford Street). Those dwellings are erected on alignments of 5.3m and approximately 3.1m respectively. 5Two storey townhouses are located on the north-western corner of Hornsey Street and Oxford Street, single storey dwellings on the south-eastern corner and a three storey residential flat building diagonally opposite the site. Development in the locality comprises a range of housing styles with single and two storey detached houses, semi detached cottages, terrace housing, town houses and residential flat building up to nine storeys in height. Those flat buildings are older style buildings on large allotments in landscaped settings. 6The Burwood Town Centre is located to the north east of the site and Burwood Public School, one block to the east. The Santa Sabina School site is on the western side of Wentworth Road, the street to the immediate west of Oxford Street. 7Kerbside parking restrictions apply to the majority of Hornsey, Oxford and Stanley Streets. The closest unrestricted parking is in Wentworth Road, south of Hornsey Street. Background and the proposal 8The original development application refused by the council varied from that now before the Court. The applicant was granted leave to rely on amended plans in April 2014 prepared following the conciliation conference overseen by the Senior Commissioner earlier this year. The council notified those plans and received 52 submissions and a petition with 87 signatures, the majority of which were objections to the proposed development. 9The plans now before the Court, with further details added during the hearing to address issues raised and clarify detail (Exhibit N), propose the construction of an eight storey residential flat building (RFB) over one basement carparking level with twelve apartments comprising 8 x 2 bedrooms, 1 x 1 bedroom + study and 3 x studios. Parking for 13 cars including one accessible space, bicycle storage and storage areas for use of residents would be provided within the basement. Eleven of the parking spaces would be provided within an electrically operated car stacker. The basement involves excavation of the whole of the site with vehicle access provided off Oxford Street adjacent to the site's northern property boundary. 10The design of the building provides for a two storey "podium" section at ground and first floor levels with a tower above setback varying distances from the streets however, erected to the side or eastern boundary adjoining the two storey dwelling house at No. 3 Hornsey Street. The ground floor of the podium is also built along the entire northern and eastern boundaries with the exception of a 2.9m setback to Oxford Street and 5.176m to Hornsey Street. The building projects into that setback closer to the intersection where it reduces to 2m and 3.07m to each street respectively. Encroachments by architectural frames and entry awnings further reduce the setback. 11The intent of the podium and the architectural frames is to reflect the adjacent heritage item at Nos 34 and 36 Oxford Street, a pair of Victorian terrace houses. 12Landscaped planter boxes are proposed around the street frontages of the site with the exception of those areas occupied by the basement ramp entry, main pedestrian entry, midway along the site off Oxford Street, a secondary fire escape passage and an entry to the ground floor unit of Hornsey Street. That planter scales at 1m with the remainder of the setback elevated an additional 500mm to provide for tree planting. That area is 980mm above the ground floor level and is therefore not accessible from either within the building or from the entry paths. 13In addition to the landscaped setbacks, a planter box is proposed around the northern and eastern faces of unit 101 on Level 1. This area is also not accessible to residents of the development and would require access over the balcony of that unit or through one of its windows. A similar planter is proposed across the southern face of the building at Level 2. The main communal open space is provided at this level at the northern end of the building with an area of 63.91sqm plus a 9.75sqm planter across its northern face that is setback a minimum of 1.088m from the northern property boundary and 2.914m from the eastern boundary. 14The majority of the communal open space is covered by Unit 301 and its balcony. Whereas the residential component of the building is setback some 15m from the northern boundary at Level 2 to provide for the communal space, this setback reduces to 6m for the unit and 2m for the balcony at Levels 3, 4 and 5 and then increased to 8.29m for units and 6m for balcony at Levels 6 and 7. 15The extent of walls erected to boundaries is a contention in the case, in particular the extent of wall on the common boundary with No 3. The wall of the ground floor runs from the northern boundary to a point 5.176m from the street boundary, being approximately 125mm forward of the neighbouring dwelling house. Precise survey details were not provided. The length of wall is 25.376m and its height is RL21.1 or between 3.21m and 3.5m above the site's existing ground levels based on the limited survey data provided in Exhibit A. At Levels 1, 2, 3, 4 and 5, the length of wall on the boundary reduces to 10.086m and is located on the same alignment to Hornsey Street and 15.09m from the rear boundary. A small indent is provided adjacent to the bathrooms of those units however no openings are proposed within that section of wall. At Level 6 and 7 a setback of approximately 500mm is provided and the length of wall reduced to 6.338m. 16According to the Supplementary Statement of Environmental Effects (Exhibit D), the zero boundary approach was in recognition that the development potential of properties to the east should be protected whilst providing for development of the site as a standalone project. It is uncontested that the applicant has made approaches to the owners of No 3 seeking to incorporate that property into the development however was unable to secure the property. The daughter of the owners of No 3 provided evidence confirming that her parents were happy living where they do and had no desire to move. The plans show a building footprint for development of No 1 and 3 Hornsey Street, said to reflect the council's planning controls. The Court notes that the setbacks indicated on those plans do not reflect those contained within the council's development control plan for front and side setbacks. The planning controls 17The site is zoned R1 General Residential under Burwood Local Environmental Plan 2012 (LEP). A residential flat building is permitted with consent in the R1 zone. Clause 2.3(2) requires that 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. The objectives of the R1 zone are: * To provide for the housing needs of the community. * To provide for a variety of housing types and densities. * To enable other land uses that provide facilities or services to meet the day to day needs of residents. 18Development standards for height and floor space ratio (FSR) apply to the site (clauses 4.3 and 4.4). A maximum height of 26m and FSR of 3:1 apply. The proposed building would have a height of approximately 25.3m and FSR of 1.99:1 so complies with both standards. 19Clause 5.10(5) of the LEP provides for assessment of the extent to which the carrying out of the proposed development would affect the heritage significance of a heritage item in the vicinity of the site. Whilst the site does not contain a heritage item and is not within a heritage conservation area, it is in the vicinity of a number of items of environmental heritage identified in Schedule 5 of the LEP. Those are the pair of Victorian terrace houses at Nos 34 and 36 Oxford Street, a freestanding two storey Victorian house at No 50 Oxford Street (south of the site), attached houses at 11-17 Stanley Street (north east of the site) and a former corner shop on the corner of Stanley and Hornsey Streets. Further from the site, Burwood Public School and the Santa Sabina Convent are also identified items. 20Burwood Development Control Plan (DCP) applies to the site and was amended on 4 March 2014. It does not contain any savings or transitional provisions. As the application was lodged under the provisions of the plan that applied prior to the amendment, consideration of those matters, which affect the assessment of the application, are relevant and are detailed in Exhibit L. Those changes relate to setback, minimum site area, landscaping and solar access. 21Under the original DCP, a minimum front setback of 6m applied. This is unchanged. 22Side setbacks were a minimum of 5m for buildings up to 12m with a reduction to 2m for those parts of the side façade comprising balconies or non-habitable rooms. For that part of the RFB greater than 12m in height an additional 3m setback or 8m is required. Rear setbacks were to accord to the provisions of the Residential Flat Design Code (RFDC) where the separation is split equally between buildings on adjoining sites or a minimum of 15% of the depth of the site, whichever is the greater. 23The amendment provides for setbacks from side and rear boundaries of 2m for the ground floor component, 3.5m for first floor, 5m and RFDC requirements for the second floor and 1m additional per floor above second floor and comply with RFDC. Those setback areas must be free of projections or encroachments. The amendments provide for the exception of at-grade landscaping, to protect the amenity and privacy of adjoining properties and streetscape. 24The amendment also added a minimum site area requirement for development over 9m in height, which requires a site area of at least 500sqm. 25Landscaped area has been reduced from a minimum of 40% to 25-30%. 26The solar access requirement has been altered to take into account the whole of the private open space of adjoining developments where those areas currently receive less than 3 hours direct sunlight. All of the area is now included in that assessment. 27Other relevant provisions of the DCP are at 2.4 - Streetscapes, with the following objectives: O1 To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics of the existing urban environment. O2 To increase the legibility of streetscapes and urban spaces so that the interrelationship between development, landscape and open space is visually coherent and harmonious. O3 To maximise opportunities for buildings to define the public domain. O4 To encourage attractive street frontages and improve pedestrian amenity. 28Part 4 relates to Development Provisions for Residential Areas and includes a number of objectives relevant to the application and is supported by specific provisions that include controls that address those objectives. Those provisions are addressed in the discussion above regarding amendments to the DCP. The objectives for residential flat buildings in Zone R1 are as follows: 4.1.2.1 Site Planning Objectives O1 To ensure new development responds to its context (e.g. streetscape and adjoining properties) and site elements (e.g. landscaping and services). O2 To ensure new development provides appropriate levels of amenity for the private and public domain. O3 To ensure the street setback enhances the setting of the building, and that side and rear setbacks create usable land for landscaping and maintain amenity between neighbouring sites. O4 To encourage the efficient use of land. 4.1.2.2 Building Design Objective O1 To ensure the appearance of new development defines and enhances the public domain through modulation, articulation, materials, active ground floor uses and sensitivity to heritage items and conservation areas. 4.1.2.3 Site and Building Amenity Objective O1 To ensure the design of internal and external amenities is functional and enhances the quality of the environment for occupants 29Section 4.7 of the DCP applies to the development of heritage items (including potential or draft heritage items), properties in a Heritage Conservation Area, and development in the vicinity of a heritage item or conservation area; where the developable property or heritage property is located in a residential area. The objectives of the Heritage Controls are: O1 To support the retention of heritage properties and maintain their heritage significance. O2 To ensure that alterations or additions to heritage properties are sympathetic to the heritage significance of the property and in keeping with its character. O3 To ensure that any alterations or additions to heritage properties reflect the predominant scale, height, proportion, character and setbacks of the existing property, and surrounding development. O4 To ensure that development located in the vicinity of a heritage item is designed and sited in a manner sympathetic to the significance of the heritage property and its setting. 30There are specific provisions that apply to development within the vicinity of a heritage item as follows: P35 Development of a heritage property, or development in its vicinity, must: - Provide an adequate area of land around the development to allow interpretation of the significant building or place; - Not detract from the setting of the heritage property; - Retain and respect significant views/vistas from the public domain to a heritage property, as well as the views/vistas originating from the heritage property itself. P40 New development, or alterations and additions to existing development, that is located in the vicinity of a heritage property, must be designed and sited to: - Have regard for, and be compatible with, the significance of the heritage property; - Reflect the bulk, scale, height and proportion of the heritage property; - Respect the front garden setting, any established setbacks, and views and vistas of the heritage property; - Be recessive in character and not dominate the heritage property; - Interpret the materials and architectural detailing of the heritage property. - Respond to the building alignment of the heritage property. 31Part 4.6 of the DCP applies to Transport and Parking in Residential Developments and also includes specific objectives and controls for parking. Of particular relevance to a contention is the proposed use of a car stacker. Provision P5 is in the following form: Installation of automated car stacking systems to meet car parking requirements for developments is not supported. Experience with and observation of these systems indicates significant potential for adverse impacts arising from slow operation causing vehicle queuing, vehicle size constraints that are not appropriate in Australia, and unreliability in cases of mechanical, hydraulic or electrical failure. Provision of freestanding spaces accessed by ramps is preferred. If restricted site size limits provision of traditional on-site parking, consideration should be given to consolidation of lots to create a larger development site. 32State Environmental Planning Policy No 65 Design Quality of Residential Flat Development (SEPP65) applies to the development and calls up the RFDC. The evidence 33The hearing commenced on site with evidence heard from a number of residents, all of whom object to the proposal. Notes of that evidence were provided as Exhibit 1. The matters raised are summarised as follows: * Failure to comply with planning controls; * Excessive bulk and scale; * Terrace will overlook private open space; * Traffic and parking, concerns people will not use stacker system and park on the street; * Noise impacts; * Loss of amenity to adjoining property through extent of the 8 storey wall on common boundary, overshadowing, loss of light to habitable rooms 1m from that boundary and to nearby properties; * Development is not sympathetic to heritage listed properties in the vicinity; * Concerns in relation to the extent of excavation to all site boundaries and possible impact on adjoining properties; * Safety concerns in relation to building design with areas for concealment; * Inadequate provision for landscaping and open space; * Precedent for other non-compliant development; 34Expert evidence was heard from: Applicant Respondent Heritage Mr G Brooks Ms M Jucic Traffic/parking Mr P Trethewey Mr R Di Federico Planning Mr S Harding Mr M Sue Urban Design Mr H Margalit Ms K Castellanos Heritage 35The experts agreed that the various issues and concerns that relate to heritage are whether the historic houses in Stanley Street, combined with the two Victorian Terraced Houses at 34-36 Oxford Street, constitute a precinct with a distinct historic character; the proposal will have an adverse impact on the setting and heritage significance of the historic houses and listed heritage items; the scale of the proposed development will "dominate" the streetscape presence of the two adjoining Victorian Terraced Houses and if the alignment, setback, scale, architectural expression, form and setting of the proposed development is satisfactory in relation to those terraces. The relevance of the NSW Heritage Branch publication Design in Context - Guidelines for Infill Development in the Historic Environment (the Guidelines) was also considered. 36Ms Jucic says the precinct is the 13 residential land parcels bounded by Oxford, Hornsey and Stanley Streets and is characterised by one and two storey domestic scale, predominantly Victorian period buildings which make up the area's character. That Victorian character is valued, as evidence by the heritage listing of seven of the land parcels and coveys a sense of continuity with the past. Mr Brooks disagrees and says the precinct does not have a distinctive historic character that would limit the development capacity of the site and notes it is not classified as a Heritage Conservation Area. 37The heritage item at No 25 Stanley Street (former corner store) would, according to Ms Jucic be visually dominated by the proposal and would render the experience of seeing the heritage building more complex and less delightful. She was less certain of the impact on the properties at Nos 11-23 Stanley Street however considered that using the RFB at 90-96 Wentworth Road as a guide, the development would be moderately visible behind the heritage items and therefore, not responsive to the Guidelines which state "the construction of unsympathetic new buildings at the rear of existing buildings can alter their massing and damage local character. The intrusion of such buildings will be limited if they cannot be seen from across the street." Mr Brooks holds the view that the setting of the Stanley Street houses will not be adversely impacted as they face away from the site and are separated by a reasonable depth of rear yards, intervening buildings and screened by large trees. 38In relation to the adjacent heritage items, Nos 34-36 Oxford Street, the Heritage Inventory Sheets were referred to during the hearing and made available following the conclusion of the matter with the agreement of the parties. The Statement of Significance is as follows: Nos. 34, 26 and 50 Oxford Street, Burwood have historic and aesthetic significance as free standing terraces constructed in the Victorian style in the c. 1870's - 1880's. Despite some modifications to No. 34, the terraces retain their original form, scale and original detailing such as verandahs and balcony with timber and case iron column, brackets and frieze, tall double hung windows, classical style mouldings and motifs. These terraces represent simple workers housing close to the railway. 39Ms Jucic says the development would be approximately three times the height of those heritage items and the expanse of the western elevation is over twice that of the dwellings with limited modulation or articulation to break up its visual dominance of the streetscape. The proposed storeys above the "podium" levels should be substantially further setback if the visual dominance were to be addressed in a meaningful way. Mr Brooks disagrees and says the proposal does not dominate the streetscape, the pair of terraced houses present as a confident and robust massing with the elevated ground floor levels, generous two storey height, projecting wings and continuous tall parapet. The new building has been deliberately and carefully designed to establish a new podium massing that creates a sympathetic two storey streetscape scale and rhythm which responds to the scale and streetscape presence of the terrace houses. The composition and architectural expression of the upper floors creates a distinctive point of difference breaking down and articulating the overall massing and scale of the new building. 40Ms Jucic says the podium should genuinely align with the terraces and this does not occur because of the projections of fin walls, which defeat the intent of a consistent alignment. The scale, on account of height and bulk, of the new building would, according to Ms Jucic, dominate the terraces adjacent and more broadly, the character of the surrounding precinct. She does not consider the design would be viewed as a discernable podium because the upper storeys have little to no setback to distinguish it from the podium feature, evidenced from the plans that show Levels 2, 3, 4, 5 and 6 with a principal setback of 3m, similar to the podium, concluding the design would be excessive visual bulk and therefore does not sympathetically respond to the items. 41Mr Brooks says the setback is sufficient and concludes there will be adverse impacts on the setting of the terraced houses however says there can be no fixed rule or objective in terms of their setting that requires a low scale neighbour to retain its individual setting or significance. He says the relationship will be largely defined by the two storey podium with the scale carefully graduated and articulated to reflect and respond to the streetscape rhythm of the items and while the upper floor does rise above the podium, there is sufficient differentiation in architectural expression to enable the upper floors to be read quite differently from the podium and therefore the terraced houses. 42Ms Jucic does not consider that the vertical rhythm of the proposed podium, which is derived by the addition of minor fin walls or mouldings 250-300mm deep and tacked on to the building's exterior and project into the setback do not achieve a meaningful rhythm. That is also negatively affected by the large driveway void immediately adjacent to the heritage item. She also says the proposal fails to interpret the architectural detail and character of the heritage items in a meaningful way. Mr Brooks disagrees and says the proposal responds in a responsible and sympathetic contemporary manner to the form and architectural character of the adjoining items with no attempt to create a pastiche of those items or copy their architectural form and detailing as to do so would demean their significance and deflect their contribution to the streetscape. 43In relation to what they consider an appropriate setback to the northern boundary, adjacent to the heritage items, Ms Jucic says the blank wall provides a poor interface with the heritage listed terraced houses and it would be preferable for a moderate setback to enable the retention of a boundary fence, affording spatial separation to interpret the original subdivision pattern. She says the character of the area includes side setbacks so speaks the pattern of housing in the suburb. Mr Brooks says that the solid side party wall defines the terraced house typology and when combined with the existing setback of the items, is sufficient to establish a satisfactory spatial and streetscape relationship between the new podium and the items. Traffic 44The experts agree that the proper application of the parking rates required in the DCP is 14 spaces, 12 for use of residents and 2 for visitors however, the development only provides one visitor space. 45Mr Trethewey says that the reliance on on-street parking for one visitor space would have no adverse impact to the amenity of existing residents because the site frontage incorporates 4 on-street parking spaces, 1 on Hornsey Street and 3 on Oxford Street, and that those spaces are convenient and rarely used so is an entirely appropriate traffic planning arrangement. Mr Di Federico disagrees and says that on-street parking should not be relied upon for the residential or visitor component of the development, that the parking adjacent to the site is time restricted to 1 hour 8am - 6pm Monday to Friday and 8am to 1pm Saturdays. If visitors need to stay longer than one hour they would be forced to move their vehicles resulting in increased traffic, contrary to the objectives of the council to ensure all new developments provide sufficient on-site parking so as to minimise the impact on the existing road network and parking facilities. 46The experts agree that the preferred position of the council is that an automated car stacking system is not utilised however, not prohibited and therefore, could be considered where it can be demonstrated to be appropriate. The proposal is to install a semi-automated car stacking system for 11 cars across the area of four parking spaces. Accordingly, area for four cars below and above the basement parking levels would be provided with three spaces at the floor level. Those spaces would shift across to facilitate access to the upper and lower platforms. 47Mr Di Federico considers that it is desirable to provide at grade parking spaces through the construction of additional basement levels rather than rely on the stacker, because of concerns in relation to breakdowns and the likelihood of residents not using the spaces but rather utilising on street parking. Whilst not agreeing the development should incorporate the stacker, he does agree that in the event the Court was to allow such a system, the form of system should meet specified criteria as detailed in the Joint Report, Exhibit 5. In addition, a mandatory maintenance agreement would be required including 6 monthly servicing, 24 hour emergency response, on-site induction for new users and the availability of replacement parts within Sydney. Mr Trethewey advised that he had made enquiries to the suppliers of two systems that could be used and this showed that these conditions could be met with an annual fee of $330 per annum per space covering the maintenance agreement. 48The height of vehicles that can fit within the system is limited to 1.5m at the upper level, 1.75m on the lower level and 2.05m on the ground floor. It is the intention of the applicant that individual spaces are allocated to strata lots so a person buying/renting a property would be aware of the size constraints imposed by the use of the stacker. 49Mr Trethewey had undertaken an assessment of the range of vehicles that could be accommodated (Exhibit B). This shows that 81.3% of cars surveyed have a height up to 1.5m, 17.4% were between 1.501m and 1.75m and 1.2% between 1.751m and 2.05m with only 1 car recorded in excess of 2.051m. Using that information, he concludes that 9 of the 11 cars would be of a height that is up to 1.5m and 2 would be between 1.501m and 1.75m with none, on average, above 1.75m. 50In addition to the maintenance agreement, the experts saw the need for a Parking Management Plan in accordance with the details contained in Exhibit 5. 51In response to an issue raised by the Court, the applicant advised that a generator could be provided within the basement plantroom so that an alternate electrical supply would be available to facilitate use of the system in the event of a blackout. Urban Design and planning 52The evidence of the urban design and planning experts was heard concurrently due to the fact that several of the contentions overlapped these areas of expertise. Setbacks and building separation 53It is uncontroversial that the development does not comply with the numerical controls contained in the DCP. The planning experts agree that the setback to Oxford Street is appropriate at ground and first floor level however Mr Sue says that the setback should be increased for the upper levels to provide a greater delineation and to ensure those levels aren't read the same as the heritage items. Ms Castellanos agrees and says it is also important to respond to what is across the street. Mr Harding disagrees and says that compliance with the council's controls would result in a "wedding cake" approach that is not a good outcome. Dr Margalit favours the Oxford Street setbacks and says that it is a critical response to the terraces and that there is an implied demarcation in the separation at the upper level common open space area however this is less pronounced on the southern side. 54Mr Sue says the existing building line established by the dwelling on Nos 1, 3 and 5 Hornsey Street should serve as the minimum setback for the ground and first floors however Mr Harding believes that there is scope for a corner element based on the presence of building opposite in Oxford Street and further along in Hornsey Street. Dr Margalit agrees and says a street wall presence is important in buildings up to 8 storeys, accepting that this is contrary to the RFDC saying it is very contextual and it is more appropriate to acknowledge different situations. Again, Mr Sue says that a greater setback is necessary from Level 2, consistent with the council's planning controls. Ms Castellanos says the proposal comes forward and will impose a greater presence to the street with no amenity. 55Ms Castellanos says that the proposal attempts to maximise its development potential at the expense of the amenity of neighbouring properties citing privacy, overlooking and overshadowing issues generated by the departure from the setback controls which also contributes to an increased perception of bulk and scale. In relation to the wall on the northern and eastern boundaries, Mr Harding says that the presence of the wall is not dissimilar from some of the outbuildings in adjoining properties, which have zero setbacks. He notes the landscaping on the roof of this area and says it would be visible from adjoining properties. Mr Sue says that it would be more appropriate to provide a setback to allow from landscaping around the building. At the upper levels, he says the setbacks should comply with those contained in the RFDC. Mr Harding disagrees and says that the zero setback is appropriate as it protects the adjoining development potential whilst not providing any significant amenity consequences. Minimum site frontage 56The DCP requires a minimum site frontage of 20m for residential flat buildings. That control was not changed as part of the suite of controls amended in March 2014. In addition, a further provision encourages site consolidated to promote efficient use of land. It is accepted by the parties that the owners of No 5 Hornsey Street have refused to consolidate their dwelling into the development site and that this is the only appropriate lot for consolidation and therefore, with a frontage of 13.31m, the control is not met. 57Ms Castellanos says that the minimum site frontage along with the minimum site area are fundamental issues to the proposal and, whilst the LEP controls envision increased density in height than that currently existing in the precinct, the controls prescribe a minimum size of site that is capable of absorbing the level of intended development for the R1 zone. The site is simply too small to sustain the envisioned scale of development permitted by the LEP controls. She says the 13.31m frontage is too narrow to allow for a proper width of building that accommodates appropriate setbacks and built form transition to the adjacent properties. The resulting built form is the outcome of the proposal's inability to provide adequate separations and setbacks due to the limited area of the site. Mr Sue says the control reflects a desire to provide bigger sites. Mr Harding agrees that is the purpose but notes that the corresponding outcome would be a bigger building. 58Dr Margalit takes a different view and says the purpose is to ensure that the building entrance, carpark entry, waste disposal and any require fire exits can be accommodated without consuming the entire site frontage and that, because the site is a corner site, this intention is fulfilled through the utilisation of the Oxford Street frontage. He does not consider that the minimum frontage is derived from a consideration of desirable building form. Minimum site area 59This control was introduced as part of the amendments to the DCP and requires a minimum 500sqm site area for any development over 9m. The site, with an area of 402sqm does not meet this numerical control. Ms Castellanos says the site is too small to allow for a proper scale of building that accommodates appropriate setbacks and internal amenity in the form of communal open space, deep soil and an adequate parking system. As a result, the proposal presents 100% site coverage and lacks adequate provision of setbacks and separation distances without providing for proper water infiltration or the provision of mature planting as a landscape buffer to adjacent sites. The resulting built form is contrary to the existing characteristic built form where most properties have landscaped areas along the side boundaries and also contrary to the DFC. 60Dr Margalit says the development needs to be considered in relation to desirable development on adjoining sites, Nos 1 and 3 in particular and whether its development will aid or hinder the development potential of those sites. To regard the site in isolation would be to diminish the development potential of these 3 sites when viewed as a whole, by imposing standards appropriate to an isolated site rather than encourage an integrated development. Bulk and Scale 61The planners agree that the adherence or otherwise to the setback controls creates the main planning issue for the application, that is, whether the resultant form of the building is acceptable for the site or whether properties should have been amalgamated. Mr Sue says that even thought the site achieves less than 2.0:1 FSR, the development should still be smaller proportional to the site area. Mr Harding disagrees saying that the 2.0:1 FSR is indicative of the reduced outcome for the site relative to the allowable 3:1. 62Dr Margalit says the FSR is a one-third reduction of development from the 3:1 provided in the LEP. This reduction is a consequence of the building form addressing issues of site setbacks, overshadowing and streetscape and represents a reasonable and not excessive, efficient use of land. Ms Castellanos says the FSR control sets a maximum standard for the site and that the proposal still has to demonstrate the capacity for redevelopment to that standard through the achievement of appropriate levels of amenity and adequate built form. The overall lack of compliance with the setback controls and the significant amenity issues to surrounding residents are a result of the proposal's excessive bulk and scale and an overdevelopment of the site. Character and design 63This issue was considered by the Urban Design experts who agreed that the DFC for the R1 zone, as stated in the DCP, envisages different scales of residential flat buildings in different locations, that there will be a difference in scale between newer developments and the existing heritage items, that the best outcome for the site would be achieved by the site redeveloping together with the adjacent sites in order to respond better to what is understood as the council's DFC for the area based on the LEP controls. They also agree that the 7 storey blank and unarticulated façade is atypical of the surrounding built form where the scale of such blank walls is a maximum of 2 storeys + roof as seen on the sides of heritage terraces. They concur the proposal has clearly defined top, middle and bottom elements. 64Ms Castellanos says the bulk and scale of the development is excessive, does not provide an adequate built form transition to the surrounding lower scale buildings, in particular the heritage items. The bulk and scale is a factor of the extent of unarticulated blank wall, the lack of appropriate setbacks and separation distances and the amount of development proposed to be built directly on the boundary to the east. This has the effect of increasing the sense of enclosure to the neighbouring property to the east and the perception of bulk and scale when seen from the front yard of that property or on approach from the east along Hornsey Street. She says the level of articulation along the frontage to Oxford and Hornsey streets does not do enough to ameliorate the impact, the introduction of stepped form up to the proposed heights and with the proposed bulk results in awkward proportions which are not aesthetically pleasing nor representative of any other contributory development in the surrounding context. The proportion, articulation and height of the roof element are disproportionate and not well integrated with the rest of the other proposed building elements. The proportions are top heavy and the amount of blank walls visible from the public domain make the roof element look like an oversized plant room. This is exacerbated by the lack of appropriate setbacks above Level 5 where the upper two levels do not setback sufficiently from the lower level below and therefore their bulk is very visible from the public domain. 65Dr Margalit says the LEP and DCP envisage the DFC will consist of RFBs sitting alongside lower scale heritage buildings and that this inevitable juxtaposition of scale is not an issue and to attempt to effect a transition from one to the other through stepped or intermediate massing is counterproductive in that it erodes the form of the larger building to its detriment. The proposal is organised compositionally into a 2 storey base, a 4 storey mid section, and a 2 storey top volume. At each transition the plan area decreases, resulting in a diminishing mass as the building rises, principles embraced in the RFDC and DCP. He says that a more effective response to integrate new flat buildings with heritage items of smaller scale is to incorporate key elements such as prominent horizontal lines and vertical rhythms into the new building and this has been achieved through the façade elements of the lowest 2 storeys with the elements not copied but re-interpreted sympathetically. Solar access 66Additional information was provided to the experts during the hearing in the form of Eye in the Sun Diagrams (Exhibit J). After considering that information, the difference between the parties was whether the "nook" adjacent to the entry of the southern units on levels 3, 4 and 5 formed part of the living area. If it was, then 100% of the units would receive solar access for a minimum of 3 hours. The rule of thumb in the RFDC and the DCP require 70%. If the nook was not living space, 66% of the units would comply. Ms Castellanos agrees there is sufficient space within the "nook" for a person to sit and read in the sun but says it is part of the foyer entry to the apartment. Mr Harding says that one third of the nook would be in sun at 12 noon. There is no dispute that the private open spaces allocated to the units receive 3 hours sunlight. Privacy 67The planners agree that privacy has been addressed through the provision of screening to the north facing balconies. The urban designers take the view that the screening of those balconies lead to a number of compromised outcomes in relation to solar access and loss of outlook from the units. They agree that a better outcome can be achieved by turning the balconies of units 3012, 401 and 501 toward the western elevation, which will achieve their solar access in the afternoon hours and avoid the overlooking and privacy issues to the north and east. This will also have the added benefit of assisting with the composition of the western elevation. 68Ms Castellanos says the elevated position of the communal terrace on Level 2 will contribute to the overlooking of the adjacent properties, especially the private open space of the adjacent units. The lack of adequate separation distances places the common open space within 2.91m of the eastern boundary and only 1.088m of the northern boundary. These distances are grossly inferior to the required RFDC distance of 6m for habitable to habitable spaces. The reduced distance also means increased acoustic privacy issues, if larger gatherings take place. The privacy screens compromise the solar access to the space and she is concerned about the viability of planting within the planter beds. 69Dr Margalit says the communal open space has strategically located screens to eliminate overlooking and the planting can be easily maintained from the space itself. Landscaping and deep soil zones, communal open space 70The planning experts agree that the area provided for communal open space is satisfactory and the urban designers note the numerical controls are not met. 71Mr Sue says the development fails to provide deepsoil planting areas and the ability to plant along the northern and eastern boundary. Mr Harding notes the provision of planters around the first floor level and communal open space. 72The urban design experts agree that the basement means that no area is available for deep soil planting as they consider such areas need to connect to the water table. They also agree that, in accordance with the provisions of the RFDC, the depth of planting facing the public domain (0.42m) is sufficient to accommodate ground covers, that the proposal does not meet the expected 25-30% landscaped area and that the landscaped areas on the ground floor (18.5%) is made by the use of planters with a soil depth of 900mm. 73Ms Castellanos says the landscaped areas along the public domain are atypical of the existing character of other frontages where the landscaped areas are accessible and add to the amenity of the units directly behind. The proposed landscaped areas along the street frontages are raised above the level of the units and are not accessible from the living or habitable areas immediately behind, contrary to the recommended 'best practice' approach in the RFDC. Dr Margalit disagrees and says the landscaping at ground level is consistent with the general pattern of front gardens in the locality, which are shallow, typically no more than 3m, and accommodate small trees and shrubs. He says the windows of the apartments will open to these areas and thus derive considerable outlook and shading from them, as well as providing these areas with surveillance to increase security at the perimeter of the development. 74In relation to the communal open space, Dr Margalit says it is well proportioned and well located for the intended use, that it is almost impossible in smaller developments to provide sufficient and suitable space for adult and older children's active recreation and that those needs are met through local parks. Ms Castellanos says that one of the objectives of the council's controls is that the area is capable of use for active recreational activities and the area is not suited for that purpose. The reliance on privacy screens compromises the solar access to the space and the majority of the space is covered and not open to the sky which is also contrary to the council's requirements for communal space. 75Dr Margalit says the communal space provides under cover area for both sun and rain protection and has a portion uncovered for enjoying direct sun. Overshadowing 76The urban design experts agreed that there is large overshadow of the public domain, in particular at 3pm during the winter solstice, that the proposed development will overshadow the adjacent property to the east in the afternoon as a result of its inadequate setbacks to the northern boundary and that, by default, if the proposed development were to observe the applicable setbacks, there would be less overshadowing of that property and the properties to the south. They do not agree whether the impacts warrant refusal of the application. 77Mr Harding says the setbacks are not the only factor in assessing the overshadowing impact. Building height is a key factor as much as the building siting. The most significant impact to the property to the east is between 2 and 3pm and he says that the dwelling on that lot would overshadow its first floor terrace at that time. Mr Sue says that it is difficult to see the impact on the adjoining property but concluded the impacts are acceptable and compliant with the DCP. Design Excellence 78The urban design experts agree that as a general principle, all proposals should achieve design excellence. Ms Castellanos says objective O1 under clause 4.1.2.2 of the DCP requires to "ensure the appearance of new development defines and enhances the public domain through modulation, articulation, materials, active ground floor uses and sensitivity to heritage items and conservation areas" and this constitutes the fundamental principles of design excellence in addition to internal amenity. She says the proposal does not exhibit design excellence as it exhibits awkward proportions, lack of appropriate setbacks which lead to an excessive bulk and scale for the size of the site as well as resulting in extensive amenity impacts to surrounding properties. In addition, the proposal presents a disconnection between the proportions and architectural style of the lower levels when compared to that of the upper levels. The lack of built form transition to existing lower scale dwellings and heritage items that are expected to remain in place for the foreseeable future means that the proposal has not achieved a sense of permanence or belonging in the surrounding character, which is also a mark of design excellence. For that reason, she says the proposal will be at odds with the existing character as well as with the DFC of the precinct. 79Dr Margalit says the threshold of design excellence is not stated in either the RFDC or the DCP as a criterion to be met for approval and, if taken universally, is a high, perhaps prohibitive bar to meet in the majority of cases by definition, in the same sense as not every building can be above average. His views are those in Character and Design above. Precedent and public interest 80Mr Sue says that the development is unsatisfactory in the form proposed and would set an undesirable precedent if approved. Mr Harding disagrees and says the development is consistent in terms of its form and character with the intent of the planning controls and in achieving those outcomes in the broader public interest. 81Dr Margalit says the proposal meets the height limits of the LEP, is under the permissible FSR for the site by one-third, sits well within the numeric intent of the LEP and in this respect is a desirable development. The proposal is predicated on the efficient use of the land of Nos 1-5 Hornsey Street and anticipates the development of those sites in accordance with the desired higher residential densities encouraged by the LEP. As such it is a catalyst building in that it begins the process of development in the area toward the DFC where RFBs sit alongside heritage properties, while adding net dwellings to the Burwood LGA in accordance with the NSW Draft Metropolitan Strategy proposals. The increased residential density the building achieves, alongside its incorporation of contextual architectural elements into its design, makes it a desirable precedent for the achievement of these 2 key qualities in future development on adjoining sites. Conclusion and findings 82Having regard to the evidence and the planning controls, I am not satisfied that the development as proposed is appropriate in the circumstances of the case. The site is too small for the size of development proposed. I accept that the proposal is compliant with the two relevant development standards contained in the LEP, those being the height and FSR control. It is only some 700mm lower than the 26m development standard for height at the point of the lift overrun however contains only two thirds of the floor space allowed. These controls are maximums and, depending on site constraints, will not always be able to be achieved. The site is constrained by its area, width, inability to be consolidated with adjoining parcels and corner position. The proximity to heritage items, whilst not a constraint, is another factor that regard must be had. 83The DCP, SEPP 65 and the RFDC provide sound guidance as to the form of development envisaged on the site and I am not satisfied that the objectives of those controls are met. It is uncontroversial that many of the numerical controls are not met that apply to the siting of the building, in particular those that apply to building setbacks. 84In particular, the development does not ensure that the street setback enhances the setting of the building and that side and rear setbacks create usable land for landscaping and maintain amenity between neighbouring sites. The imposition of an eight storey building on the boundary of the adjoining dwelling is inappropriate and will present as unacceptable visual bulk and constrain the future development of those adjoining sites. I am not satisfied that the building footprint proposed would provide for a building that complies with the DCP and in particular the amenity principles of the RFDC. Similarly, the DCP envisages buildings separated by landscaping rather than promotes walls built to boundaries, the latter being a more appropriate form of development within commercial zones. 85The proposed setbacks do not respond to the context of the site and I accept the evidence of the council's experts that a greater setback is required to the upper levels of the building to ensure a differentiation between the podium and upper storeys. The building does not enhance the public domain through modulation, articulation, materials, active ground floor uses or sensitivity to heritage items. Nor does it respond to, reinforce and sensitively relate to the spatial characteristics of the existing urban environment or increase the legibility of streetscapes and urban spaces. The relationship between the development, landscape and open space is not visually coherent and harmonious. 86The lack of deep soil planting and the elevation of landscaped areas is also the result of the site being too small for the scale of development proposed and does not satisfy the objective of being functional, accessible and open off living areas. 87In relation to the use of car stackers, I acknowledge that the DCP does not support the use of these systems however, they are becoming an accepted means of addressing site constraints. In this case, there is no evidence why the basement area cannot be extended to provide for individual parking spaces and also accommodate the full parking complement required by the DCP. The proposal is for 11 of the 12 resident parking spaces to be provided within the stacker. Inadequate study of the reliability of the proposed systems has been undertaken and a complex management system would be required to ensure efficient operation. A further disadvantage is the limitation on the size of vehicles that can be accommodated on the four upper level spaces. That would only be acceptable where alternate space is available on site for vehicles that do not fit within the space to be provided and this is not the case without providing additional spaces, noting that a deficiency of one visitor space applies. 88Whilst not a reason on its own to refuse consent, when combined with the unsatisfactory aspects of the development as outlined above, the application does not warrant approval. 89The Orders of the Court are: (1)The appeal is dismissed. (2)Development Application No. 127/2013 for the demolition of an existing dwelling house and construction of an eight storey residential flat building containing 12 apartments over basement carparking is refused. (3)The exhibits, other than exhibits A, N and 2, can be returned. ___________________ Sue Morris 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: 20 June 2014