Land and Environment Court New South Wales Medium Neutral Citation: Karavelas v Hurstville City Council [2014] NSWLEC 1195 Hearing dates: 15 September 2014 Decision date: 23 September 2014 Jurisdiction: Class 1 Before: Pearson C Decision: 1. The appeal is upheld. 2. Development Application DA2013/0346 for the demolition of existing structures and construction of a three storey residential flat building comprising 14 residential units with basement car parking at 66-68 Lawrence Street Peakhurst is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits A, F, G, H, 4, 5, 6 and 8, are returned. Catchwords: DEVELOPMENT APPLICATION - Residential Flat Building Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development Hurstville Local Environmental Plan 2012 Cases Cited: FM Holdings Pty Ltd v Hurstville City Council [2014] NSWLEC 1061 Category: Principal judgment Parties: William Karavelas (Applicant) Hurstville City Council (Respondent) Representation: Mr M Staunton (Applicant) Mr M Seymour (Respondent) Gadens (Applicant) HWL Ebsworth (Respondent) File Number(s): 10343 of 2014 Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed and subsequent actual refusal by the respondent Council of consent to development application DA2013/0346 for the demolition of existing structures and construction of a three storey residential flat building comprising 14 residential units with basement car parking at 66-68 Lawrence Street Peakhurst (the site). 2The issues identified in the Council's Statement of Facts and Contentions were compliance with the applicable planning controls in relation to solar access, building separation and setbacks, height bulk and scale, internal amenity, privacy, streetscape, building envelope, roof design, driveway design and location, front setback treatment and communal open space; and the public interest, being establishment of an unacceptable precedent in the area and the cumulative impact of the changing nature of the area. An additional contention related to insufficient information as to solar access and the adequacy of the photomontage provided. 3The plans have been amended several times during the course of the proceedings, and those now before the Court vary significantly from those before the Council when the development application was refused. The Council's position at the conclusion of the hearing was that the agreed evidence of the experts should be accepted, and that the contentions have been addressed by the amendments to the plans and the proposed conditions. The proposed development is now largely if not wholly compliant with the relevant controls, and on that basis the Council no longer presses its contention that approval would establish an undesirable precedent. The site and its context 4The site is on the northern side of Lawrence Street and comprises two adjoining allotments, known as 66 and 68 Lawrence Street. The site is 1159.4 sqm, and has a fall from the street to the rear northern boundary of approximately 3m. A sewer pipeline runs across the site width near the rear northern boundary of the site. 5The development in the immediate vicinity of the site is predominantly single or two storey detached dwellings. On the east the site adjoins a two storey multiple dwelling development. The area is undergoing change, and several applications have been made for residential flat buildings in the locality consequent on rezoning under the Hurstville Local Environmental Plan 2012 (the LEP), including a consent granted by the Court for 50-52 Lawrence Street (FM Holdings Pty Ltd v Hurstville City Council [2014] NSWLEC 1061) and three consents granted by the Council (exhibit 7). The proposal 6Development application DA2013/0346 was lodged on 25 October 2013, and publicly exhibited. The application was considered on 7 November 2013 by the St George Design Review Panel (DRP), which recommended changes. The plans were amended, and the application was considered at Council meetings on 7 May and 21 May 2014. The Class 1 appeal was lodged on 26 May 2014 and the Council refused consent on 4 June 2014. 7The matter proceeded directly to a hearing as the Council did not grant its staff delegation for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979. Discussion between the parties' planning and urban design experts during the course of joint conferencing resulted in recommendations in their joint report for changes to the plans. On 9 September 2014 the applicant was granted leave to rely on amended plans, and the experts prepared a supplementary joint report (exhibit 3). During the course of the hearing further amendments were made to the plans. 8The main changes between the plans as considered by the Council and those now before the Court (exhibit F) include relocation of the communal open space to the roof from the front setback; raising the height at the front portion of the building to better align with the street frontage, to avoid ramps and stairs up from the units to the street frontage, and requiring a re-design of the units to avoid split level designs; provision of front courtyards for the ground floor street facing units; repositioning of the garbage facilities from the eastern to the western side of the building; change in driveway location and provision of 1m wide landscaping along the western side boundary; re-design of the fire stairs from the basement level and provision of additional landscaping; and redesign of the units to increase side setbacks. Those amendments incorporate recommendations made by the parties' experts, and by the DRP (exhibit 1, tab 4). 9The proposal now before the Court is for a three storey development comprising 4 x 1 bedroom units, 9 x 2 bedroom units and 1 x 3 bedroom units, and basement car parking for 19 vehicles, accessed from a driveway on the western side of the site. The entry foyer is located in the centre of the building, accessed on a ramp from street level. There is an area of north facing communal open space on the roof, recessed to prevent downward overlooking and noise impacts. The garbage room is located in the basement on the western side of the building with access to the driveway ramp. The setbacks along the western side of the building vary between 4m-5.3m, with the deeper setback for those units oriented towards that side boundary and with privacy treatments for windows. The setbacks along the eastern side of the building vary between 4m - 6m. The rear setbacks vary from 5m to balconies to 6.27m. Evidence 10The hearing commenced on site with a view. Evidence was given on site by two residents of 70 Lawrence Street, which adjoins the subject site to the east (units 7 and 13), who expressed concerns as to loss of light and sun, increased traffic, parking and access issues, and the need for better public transport (exhibit 2). Submissions made to the Council during its consideration of the application are in evidence (exhibit 1, tabs 11-26), and raise concerns as to bulk and scale, loss of trees, parking and traffic, loss of solar access and overshadowing, noise, stormwater drainage, privacy, and pedestrian access. 11Expert planning evidence was provided on behalf of the applicant by Mr Andrew Darroch, and on behalf of the Council by Mr Anthony Betros. Expert urban design evidence was provided on behalf of the Council by Ms Gabrielle Morrish. Mr Darroch, Mr Betros and Ms Morrish provided a joint report on 25 August 2014. A supplementary joint report addressing the plans as amended on 9 September 2014 was provided (exhibit 3), and the experts gave oral evidence. Planning Controls 12The site is zoned R3 Medium Density Residential under the LEP. The land surrounding the site, in the area bounded by Forest Road and Jacques Avenue to the south, Bonds Road to the east, Trafalgar Street and Gover Street to the north, and Belmore Road to the west, is zoned R3. That area of R3 zoned land is surrounded by land zoned R2 Low Density Residential. Residential flat buildings are permissible with consent in the R3 zone, and prohibited in the R2 zone. Multi dwelling housing is permissible in both zones. 13The Council has prepared a Planning Proposal to amend the LEP to change the zoning of the land in this area currently zoned R3 to R2 (exhibit 1, p 86), which has been submitted to the Department of Planning. It was common ground that the proposed amendment of the zoning is not a relevant consideration in this appeal. 14The aims of the LEP are provided in cl 1.2(2): (a) to encourage and co-ordinate the orderly and economic use and development of land that is compatible with local amenity, (b) to provide a hierarchy of centres to cater for the retail, commercial, residential accommodation and service needs of the Hurstville community, (c) to provide a range of housing choice that: (i) accords with urban consolidation principles, and (ii) is compatible with the existing environmental character of the locality, and (iii) is sympathetic to adjoining development. (d) to protect and conserve the environmental heritage, cultural heritage and aesthetic character of Hurstville, (e) to maintain and enhance the existing amenity and quality of life of the Hurstville community, (f) to ensure development embraces the principles of quality urban design, (g) to ensure that development is carried out in such a way as to allow the economic and efficient provision of a range of public services and community facilities, (h) to protect and enhance areas of remnant bushland, natural watercourses, wetlands and riparian habitats, (i) to retain, and where possible extend, public access to foreshore areas and link existing open space areas for environmental benefit and public enjoyment, (j) to ensure development embraces the principles of ecological sustainability. 15Clause 2.3(2) of the LEP requires that regard be had to the objectives for development in a zone when determining a development application. The objectives for the R3 zone are: · To provide for the housing needs of the community within a medium density residential environment. · To provide a variety of housing types within a medium density residential environment. · To enable other land uses that provide facilities or services to meet the day to day needs of residents. · To ensure that a high level of residential amenity is achieved and maintained. · To provide for a range of home business activities, where such activities are not likely to adversely affect the surrounding residential amenity. 16Relevant development standards are provided in cl 4.3 for height (maximum 12m), and in cl 4.4 for floor space ratio (FSR) (1:1). The proposed building is within the 12m height limit, other than for clerestory windows which the experts agree are architectural roof features permitted by cl 5.6 of the LEP. The total gross floor area is 1158.91 sqm, which complies with cl 4.4. 17The Hurstville Development Control Plan No 1 - LGA Wide applies. Section 3 contains General Planning Considerations, and Section 4: Specific Controls for Residential Development includes section 4.3 Multiple Dwellings & Residential Flat Buildings. 18Section 3.5.2.1(1) Solar Access requires that design allow for at least 3 hours of sunlight to adjoining dwellings principal area of ground level private open space. Relevant provisions in section 4.3 include cl 4.3.2.3 (ii): roofs should be constructed with a pitch of between 22-35 degrees; 4.3.2.8: rooms generally used during the daytime should be capable of receiving adequate sunlight; and 4.3.2.10: residential flat buildings must provide a minimum of 20 percent of the total site area as landscaped open space. Clause 4.3.2.4 provides for building height and form, including the building envelope for residential flat buildings, which determines side boundary setbacks. Clause 4.3.2.5 provides for a minimum front boundary setback for a residential flat building of 6m. Clause 4.3.2.11 provides for minimum areas of open space at ground levels and on upper floor balconies. 19State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies, and cl 30 requires consideration of design quality when evaluated in accordance with the design quality principles in cll 7-18, and the Residential Flat Design Code (RFDC). In cl 7 of SEPP 65 Principle 1: Context states that good design responds and contributes to its context. Principle 2: Scale in cl 10 of SEPP 65 states that good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Both principles note that in precincts undergoing transition, responding to context and establishing an appropriate scale require consideration of the desired future character of the area. 20The Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment, State Environmental Planning Policy No 55 - Remediation of Land, and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 apply to the application. Consideration 21In their joint report (exhibit 3) the planning and urban design experts addressed the contentions by reference to the substantive issues, and their analysis is adopted for the purposes of consideration of the proposed development in the form now proposed. 22Considering first the issue of solar access, the applicant has now provided additional information including views from the sun (exhibit C). Based on that evidence, the experts agreed that the proposal meets the requirement of the RFDC for Building Amenity that 70 percent of units receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid winter, if an additional window is provided for the north facing section of the living room wall in units 7 and 12. That amendment was initially proposed in the form of a condition, and is now reflected in the amended plans provided after the hearing. 23The building form provisions at cl 4.3.2.4 of the DCP require a side setback of 4m for ground and first floor levels, and 7m for the second floor. The experts agreed that that a 4m side setback is acceptable only where the primary orientation of living areas is not to the side boundary. The amended plans incorporate a re-design of those units as recommended by the experts, and side setbacks in excess of 4m are now provided. The proposal complies with the minimum 7m setback for the second floor level. The plans include requirements for privacy screens for the balconies of units 1, 4, 6 and 11, and semi-translucent glazing on side facing living room windows and side facing bathroom windows. The landscape plans (13-2753 LO1 Rev C, 13-2753-LO2 Rev B) provide for privacy planting along the western and eastern boundaries. The proposed development meets the required minimum rear setback of 6m, and the landscape plans include screen planting along the boundary and canopy trees. I accept the agreed evidence of the experts that the proposed development meets the requirements of the DCP other than for minor exceedances of the building envelope provisions; that it is consistent with the objectives of the setback controls, which as stated in cl 4.3.2.5 include provision of adequate space for landscaping, visual and acoustic privacy, sunlight penetration, safety requirements and for the establishment of an attractive streetscape; and that it meets the objective of cl 4.3.2.1(v) of avoiding adverse privacy and overlooking impacts on neighbouring properties. 24The experts agreed that the proposed development complies with the DCP requirements for private open space. They agreed that the provision of the communal open space on the roof level avoids potential visual and acoustic impacts at ground level, as was initially proposed, and that its size (114.93sqm) is appropriate for the proposed 14 units. They agreed that the redesign of the side walls, with increased articulation, additional screening devices, and with additional screening landscaping, achieves an acceptable design resolution. 25Clause 4.3.2.3(ii) of the DCP provides that roofs should be constructed with a pitch of between 22 - 35 degrees. The proposal incorporates a flat roof. The experts agreed that the provision of a pitched roof is not essential or determinative. I accept their evidence and agree that the proposed roof form is consistent with the objectives of the Building Form and Style provisions at cl 4.3.2.3, which include to create attractive streetscapes, and complement the surrounding built form, landscaping and environmental conditions of the locality. 26The experts agreed that the re-design of the front part of the building including the provision of courtyards better aligns with the street frontage, and provides for a better design and access. The proposal now incorporates additional landscaping in the front setback (drawing 13-2753 LO2 Rev B), including at the western boundary. The Brush Box street tree at the western side of the street frontage is to be retained. 27Considering the other matters raised by the objectors that are not addressed above, the experts agreed that the shadow diagrams provided with the amended plans confirm that the proposed building will not overshadow the adjoining development at 70 Lawrence Street between 9am-3pm in mid winter. Accordingly, I am satisfied that the proposed development complies with section 3.5.2.1 of the DCP. In relation to traffic and parking, the development application was assessed by the Council's Senior Traffic Engineer who commented, based on traffic counts undertaken by the Council in September 2013, that existing traffic volumes are well below the Roads and Maritime Services (RMS) guidelines for a local road, that there is sufficient capacity in Lawrence Street to accommodate the extra traffic likely to be generated by the development, that sight distances from the site comply with RMS guidelines and pedestrian movement is also available off-road adjacent to the road pavement, and that car parking is provided on-site minimising any impact on on-street parking availability (exhibit 1, pp 150-151). I accept that evidence. Conclusion 28The plans in their amended form respond to recommendations made by the DRP for reconfiguration of the pedestrian entry ramp and driveway ramp to improve the interface to the street and improve access, and relocation of the garbage bins area; and to the recommendations arising in the course of joint conferencing between the experts. I accept the agreed expert evidence, and I am satisfied that with those amendments the proposed development accords with the design principles in SEPP 65 and the provisions of the RFDC; and that the proposed development complies with the applicable development standards in the LEP. I am satisfied that the proposed development generally complies with the provisions of the DCP, and that it is appropriate to allow the variations to those controls when regard is had to the objectives specified in the DCP. 29The site is in an area undergoing transition as a consequence of the rezoning of the land in the area to R3, under which residential flat buildings are permissible. The desired future character of the area is reflected in the zone objectives, and specific controls, in the LEP. The zone objectives include providing for the housing needs of the community within a medium density residential environment, and providing a variety of housing types within a medium density residential environment. The proposed development is consistent with those objectives. The objectives for the R3 zone also include ensuring that a high level of residential amenity is achieved and maintained. Based on the expert evidence, I am satisfied that residential amenity both for future occupants of the development and for its neighbours is maintained, in particular in terms of solar access, and privacy. The proposed development is consistent with the zone objectives. 30The proposed conditions include a deferred commencement condition requiring registration of an easement for stormwater drainage from the rear of the subject site; and conditions requiring compliance with Sydney Water requirements for stormwater (conditions 10, 11), and engineering works for the stormwater drainage system (conditions 20, 21) and on site detention (condition 22). The proposed conditions include conditions relating to protection of trees (condition 23); and a geotechnical report and dilapidation reports for adjoining properties (condition 31). 31I am satisfied that the proposed development in the form of the plans now before the Court complies with the applicable planning controls, or where the numerical provisions of the DCP are not achieved that the proposed development meets the objectives of those controls, and that it is appropriate that consent be granted, subject to the conditions as proposed. 32The Orders of the Court are: 1. The appeal is upheld. 2. Development Application DA2013/0346 for the demolition of existing structures and construction of a three storey residential flat building comprising 14 residential units with basement car parking at 66-68 Lawrence Street Peakhurst is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits A, F, G, H, 4, 5, 6 and 8, are returned. Linda Pearson 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: 23 September 2014