Land and Environment Court New South Wales Medium Neutral Citation: Triple 8 Property Group Pty Limited v Hurstville City Council [2014] NSWLEC 1262 Hearing dates: 17 December 2014 Decision date: 19 December 2014 Jurisdiction: Class 1 Before: Morris C Decision: Appeals upheld Catchwords: Development Application, residential flat building Legislation Cited: Environmental Planning and Assessment Act 1979; Hurstville Local Environmental Plan 2012; 17 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development Texts Cited: Residential Flat Design Code; Residential Flat Design Code Category: Principal judgment Parties: Triple 8 Property Group Pty Limited (Applicant) Hurstville City Council (Respondent) Representation: Mr P Clay SC (Applicant) Mr J Diep Maclarens Lawyers (Applicant) Mr A Seton Marsdens Law Group File Number(s): 10575 and 10576 of 2014 Judgment 1Triple 8 Property Group Pty Ltd lodged two development applications with Hurstville City Council for two adjoining sites. Both applications propose the construction of residential flat buildings across two allotments. The council refused consent to these applications and Triple 8 is appealing the decisions. 2The majority of the contentions in the case were resolved through the preparation of amended plans however the council still pressed contentions that relate to building siting and separation. 3The Parties agreed that evidence in one matter would be evidence in the other as the plans propose similar developments on each site, one being a mirror reversed version of the other. The applications 4Matter No 10575 of 2014 relates to Development Application DA2013/0406 and applies to land know as Nos 9 and 11 Peake Parade, Peakhurst (9-11). 5Matter No 10576 of 2014 relates to Development Application DA2013/0404 and applies to land known as Nos 5 and 7 Peake Parade, Peakhurst (5-7). 6The proposed development in each matter involves the demolition of two existing dwelling houses and the construction of a residential flat building containing 13 units with basement carparking. The sites and the locality 7Both sites are located on the southern side of Peake Parade and fall from the rear towards the street. 5-7 has a frontage of 32.31m and site area of 1125sqm whereas 9-11 has a frontage of 32.37m and area of 1138sqm. 8Development surrounding the site comprises single storey detached dwelling houses and two storey dual occupancy development. A newer two storey dwelling adjoins No 11. Peakhurst neighbourhood centre is located to the south of the site at the southern end of Hugh Avenue. Development in the vicinity of the site is currently undergoing redevelopment due to the rezoning of the land to permit development of three storey residential flat buildings. Amendments to the application 9During the joint conferencing, the parties discussed those matters that the council had identified as being either deficient in terms of information to allow proper assessment of the application or unsatisfactory in terms of compliance with the relevant planning controls and identified in the Statements of Facts and Contentions (Exhibits 1 and 6). 10The applicant sought leave to rely on amended plans that reflect those discussions. That leave was granted subject to payment of the those costs of the council that are thrown away as a result of amending the development application, pursuant to s97B of the Environmental Planning and Assessment Act 1979 (EP&AAct) as agreed or assessed. 11The plans before the Court in each matter now propose the construction of a three storey residential flat building. Due to the change in levels across the site the levels are split at the approximate midpoint of the building. 12The basement floor contains a two bedroom unit, entry lobby, garbage store, bicycle racks and parking for 17 cars. The ground floor would contain five units, four of which are two bedroom and one is a one bedroom unit. Each of the two bedroom units have access to ground level private open space with a balcony provided to the one bedroom unit. 13The first floor also comprises five units, 4 x 2 and 1 x 1 bedroom all of which have balconies provided off the living areas. The top floor comprises two 2 bedroom units and an area of communal open space towards the front and in the centre of the building. The planning controls 14The site is zoned R3 Medium Density Residential under the provisions of Hurstville Local Environmental Plan 2012 (LEP) and residential flat buildings are permitted with consent in that zone. The objectives of the 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. 15Clauses 4.3 and 4.4 of the LEP contain development standards relevant to the assessment of the application, those being height (12m maximum permitted) and floor space ratio (FSR) (1:1 maximum permitted). The development complies with those standards. 16Development Control Plan 1 - Hurstville LGA Wide (DCP) applies to the sites. The DCP contains further controls and those relevant to the remaining contentions are streetscape, building form and style, building height and form, setbacks and carparking and access. Particular numerical controls not met by the amended plans are the protrusion of the basement above ground (maximum 1m permitted). Balconies are not permitted within the side boundary setback and the balcony to two of the first floor rear units in each development extends within that setback for an area of 2m x 2m. 17State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP65) and the associated Residential Flat Design Code (RFDC) applies to the applications. The DCP requires that balconies have a minimum area of 12sqm and a minimum width of 2.5m. The issues 18Through the joint conferencing process and the preparation of the amended plans, all of the contentions in the case were resolved to the satisfaction of the experts. Despite this evidence, the council pressed contentions 1, 4, 9h and 9j. These relate to non-compliance with the building envelope control and the numerical controls for side boundary setback for balcony areas and basement protrusion above natural ground level. 19The side boundary setbacks are established through the building envelope control. The proposal does not comply with this control and the extent of the breach is shown on the section plans. The contention that relates to setbacks is the proximity of the balconies to units 11 in each development. In the development 5-7, unit 11 is located in the south western corner of the building and in 9-11 it is in the south eastern corner so they are opposite each other. Each unit is a 2 bedroom corner unit with a balcony off the living area with dimensions of 2m x 6m and area of 12sqm. The balconies extend 2m into the side boundary setback. A distance of 8m separates the two balconies. This is less than the 12m recommended in the RFDC however the remainder of the building achieves this separation. The evidence 20The hearing commenced on site with a view. No objectors were present. The council had not received any submissions in response to the notification of earlier amended plans however it had received objections to the plans originally lodged with the application. 21Mr S Harding (applicant) and Mr A Betros (council) provided expert town planning evidence and Ms G Morrish (council) provided urban design evidence in the form of the Joint Reports (Exhibits 4 and 8). Ms Morrish did not attend the hearing. In their Joint Reports they conclude that the amended plans satisfactorily address the contentions in both cases. 22The experts agreed that the modified presentation to the street and the additional landscaping along both sides suitably address the contention in relation to the basement protrusion. 23In relation to the separation distance between the balconies, the experts agree that because the balcony is south facing, it should protrude outside the wall of the building to achieve solar access. Mr Harding and Mr Betros concur that the provision of the proposed louvered privacy screen at the end of the balcony would be an appropriate resolution of the issue and do not consider there would be any unreasonable aural privacy concerns. However Mr Betros also recommends the reduction in the length of the balcony to increase the separation to 10m to achieve the objectives of the control. The applicant accepted this could be achieved through a condition of consent. 24All experts agree that the variation to the building envelope is of a minor and inconsequential nature and has no streetscape or amenity impacts. They note that the building height is well below the height limit and that the side setbacks are generous being 6-8m. They agree that the section plan taken through the southern portion of the building represents the greatest extent of variation or close to it. That section provides for a triangular shaped portion of the upper floor with approximate dimensions of 1.8m x 1.8m at the worst point (No 5-7) and 1.6m x 1.6m at 9-11. It reduces to approximately 800mm x 800mm on the opposite side of the buildings. Conclusion and findings 25The experts in the case are satisfied that the amended plans satisfactorily resolve all of the contentions in the case including those pressed by the council. 26Despite this view, three issues remain, those being the basement protrusion, the breach of the building envelope and the balcony protrusion into the side setback and consequential impact on the building separation. 27The extent of the basement protrusion is the result of the need to provide a 300mm freeboard to address stormwater drainage issues associated with an overland flow path that affects the sites and the adjoining roadways. This prevents the lowering of the basement level. The extent of protrusion has been reduced through the relocation of unit 1 to the basement level and the provision of landscaped planters to screen that part of the wall where there is no residential component. The length of wall facing the street is approximately 5.5m and the roller door servicing the basement would also be part of the intrusion. For these reasons, I find the variation to the control acceptable. 28The extent of building envelope non-compliance is described at [24]. The greatest variation is at the rear of the building and therefore has no impact on the streetscape. There are no adverse solar impacts from the encroachment. The extent of variation is considered by the experts to be "minor" and "inconsequential". I do not consider the extent of variation is of such an extent to warrant refusal of the applications. 29There are only two balconies in each development that protrude into the side boundary setback. That protrusion does not breach the building envelope control, is located at the rear of the development and is at first floor level. The remainder of the buildings meet the recommended separation distance specified in the RFDC. I agree with Mr Betros that it is appropriate to increase the separation and retain solar access to the balconies and consider the resultant 10m separation for an area of 2m x 1m in this circumstance is not a reason to refuse consent. 30In view of my findings in relation to the three issues pressed by the council, and having regard to the evidence in the case, I am satisfied that the proposed development satisfies the aims and objectives of the planning controls and the relevant matters for consideration under s79C of the Environmental Planning and Assessment Act 1979. Accordingly, there are no reasons why consent should not be granted. 31The Orders of the Court are: 32In Matter No 10575 of 2014 (1)The appeal is upheld. (2)Development Application DA2013/0406 for the construction of a residential flat building at Nos 9 and 11 Peake Parade, Peakhurst is approved subject to the conditions in Annexure A. (3)The exhibits, other than Exhibit B, C and 1, are returned. 33In Matter No 10576 of 2014 (1)The appeal is upheld. (2)Development Application DA2013/0404 for the construction of a residential flat building at Nos 5 and 7 Peake Parade, Peakhurst is approved subject to the conditions in Annexure B. (3)The exhibits, other than Exhibit A, C and 6, are 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: 19 December 2014