Land and Environment Court New South Wales Medium Neutral Citation: Pearce Developments (Aust) Pty Ltd v Hurstville City Council [2014] NSWLEC 1269 Hearing dates: 4 December 2014 Decision date: 10 December 2014 Jurisdiction: Class 1 Before: Morris C Decision: Directions made, see [39]. Catchwords: Development Application: residential flat building Legislation Cited: Hurstville Local Environmental Plan 2012; State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development Texts Cited: Hurstville LGA Wide Development Control Plan No 1; Residential Flat Design Code Category: Principal judgment Parties: Pearce Developments (Aust) Pty Ltd (Applicant) Hurstville City Council (Respondent) Representation: Counsel: Mr R White (Applicant) Ms V McGrath (Respondent) Solicitors: Gadens Lawyers (Applicant) Norton Rose Fulbright (Respondent) File Number(s): 10708 of 2014 Judgment 1. Pearce Constructions (Aust) P/L lodged development application D2014/0946 with Hurstville City Council seeking consent to demolish existing site improvements and construct a residential flat building containing 20 units with basement carparking at Nos 4, 6 and 8 Pearce Avenue, Peakhurst. Pearce lodged an appeal against the council's deemed refusal of the application and since that time the council has officially refused consent. The site and its context 1. The site comprises three adjoining allotments that are located on the northeastern side of Pearce Avenue between Trafalgar Street and Peake Parade. Total frontage of the site is 57.407m and area is 1755.3sqm. The land falls from the south to the north towards a public reserve that is located to the rear and northern boundary of the site and soften the appearance of the development when viewed from the public domain. 2. Development in the vicinity of the site primarily comprises older style single storey detached dwelling houses however there are also newer two storey dwellings including one to the immediate south of the site, dual occupancy developments and multiunit housing (aged). The area is undergoing a transition from detached housing to higher density development following its rezoning in late 2012. 3. Single storey dwelling houses and associated outbuildings are located on each of the three allotments and all would be demolished to provide for the development. The site contains a number of large trees towards the rear and one large pine tree adjoining the proposed driveway entry to the site. The plans provide for the retention of a number of these trees and it was agreed during the hearing that the pine tree should also be retained to complement the existing street trees adjacent to the site. Background 1. The development application was lodged on 19 June 2014 and the appeal against its deemed refusal filed on 4 September 2014. The council formally refused consent at its meeting of 19 November 2014. The plans determined proposed the construction of 20 units and the reasons for refusal were non-compliance with planning instruments and controls, adverse impact on the natural and built environment, the development not seen to be in the public interest and inadequate information provided to allow a proper assessment of the suitability of the site with regards to overshadowing, privacy and fences adjoining the public domain. Amendments to the application 1. As a result of the joint conferencing process in preparation for this appeal, the applicant had prepared amended plans that adopted recommendations of the council's urban design and planning experts. Leave was granted to the applicant to rely on those plans, the Version K plans, Exhibit A, during the hearing 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. 2. Those plans make a number of amendments to the proposal including the reduction in the number of units by 1, increased side boundary setbacks, reconfigured internal layouts of the basement and units and the associated balcony and private open space areas. The proposal is now for 19 units with parking for 25 cars. The unit mix comprises 1 x 3 bedroom, 17 x 2 bedroom and 1 x 1 bedroom units. The planning controls 1. The site is zoned R3 Medium Density Residential under 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. 1. Clause 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). 2. Hurstville LGA Wide Development Control Plan No 1(DCP) contains further controls and those relevant to the application are streetscape, building height, building setbacks, privacy and private open space. Clause 4.3.2.9 of the DCP includes the following control: Solid fences and walls fronting public space must be no more than 1m high. The "principal private open space" of any new dwelling must not be located forward of the front building line. Where "private open space" has a common boundary to public space (e.g. the street), the height of fences may be increased to 1.8m where appropriate, but only if the fence has openings which make it not less than 50% transparent. 1. Clause 4.3.2.11 applies to private open space and requires the principal private open space for a dwelling in a residential flat building containing less than 3 bedrooms to have minimum dimensions of 4m x 4m, be not steeper than 1 in 20 and be conveniently accessible from a main living room of the dwelling. A total of 50sqm of open space at ground level is required for those dwellings. 2. State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP65) and the associated Residential Flat Design Code (RFDC) are also relevant considerations in relation to the contentions in the case. The issues 1. The contentions in the case are detailed in the council's Statement of Facts and Contentions, Exhibit 1 and are inconsistency with SEPP65, the RFDC, the LEP and DCP; development is not in the public interest and would set an undesirable precedent and that insufficient information has been provided to allow proper assessment of the application and any likely impacts of the development and whether adequate solar access is provided. The evidence 1. Ms G Morrish (urban design) and Mr A Betros (planning) provided expert evidence for the council with Mr A Darroch providing planning evidence for the applicant. They had prepared the initial joint report, Exhibit D that made a series of recommendations that would in their opinion, if adopted, address the contentions in the case. 2. In response to those plans, a supplementary joint report was prepared, Exhibit C and was based on the Version J plans. That report made further recommendations in relation to privacy treatment of windows, terracing of private open space areas, and further redesign of the internal layout of some of the units to address impact from the use of the driveway, improvement to the treatment of the areas within the front building line and front façade, through removal of louvres. 3. Mr Betros advises that these changes have been made in the Version K plans that are before the Court. Ms Morrish did not provide evidence during the hearing. 4. The experts now agree that the unit sizes are satisfactory, the location of the bin store is appropriate, provision of store rooms and bike stores has been resolved, the layout is appropriate, the terracing addressed the original concern in relation to the exposure of the basement when viewed from the rear of the site and adjoining public reserve, the relocation of the communal open space area to the roof is appropriate, the driveway location and landscaping is acceptable and the front elevation is appropriate. They conclude that the changes resolve the LEP and DCP matters and the objectives of SEPP65 and the RFDC, apart from the possible variation to the development standard for height due to the desire of the applicant to provide lift access to both rooftop communal open space areas. 5. The plans provide for two areas of open space in the centre of the roof area. Due to the slope of the site, the building has been designed to step down the slope, a principle supported by all experts. This results in the roof of the development being at different levels as it too steps down the site and also, due to the size of the building, there is a need for separate stair and lift wells. The northern communal open space is at RL 41.10 and the southern area at RL41.90, a difference of 800mm. The Version K plans show a lift well extending to RL45.05 that would service the southern area and the adjoining stairwell with a roof height of RL44.15. A stairwell servicing the northern communal open space with a roof height of RL 43.90 is shown on the plans however no corresponding lift well is provided. 6. It became apparent during the hearing that the southern stairwell is incorrectly located. Mr White, for the applicant, advises that it is his client's intention to provide lift access to both rooftop areas to ensure equitable access is available to all future residents. The consequence of this is that the lift overrun would exceed the 12m height development standard. The extent of that breach involves an area 2.4m x 2.4m with a height exceedance of 900mm. The structure is located approximately 15.5m from the front boundary, 10m from the closest rear boundary, 19m from the closest side boundary with the adjoining public reserve and 30m from the adjoining dwelling house. 7. Mr Darroch has prepared an objection to the development standard as required under the provisions of clause 4.6 of the LEP. 8. Ms McGrath, for the council, advises that the council does not support variation to any of the development standards that apply to the site and seeks to ensure that all developments within the zoned area are fully compliant with the council's planning controls. In addition, despite the evidence of the planners, the council still opposed the development due to non-compliance with the DCP provisions for the location of principal private open space, and non-compliance with the unit floor areas and the location of storage areas not complying with the location recommended in the RFDC. 9. The DCP requirement for the location of principal private open space (PPOS) is at [10]. The PPOS for units 1 and 5 are in two locations, one being within a courtyard that opens off the living space of the units and a further space within the area forward of the courtyard and building area. Unit 1, a one bedroom unit has a 12sqm courtyard with dimensions of 3.055m x 2.6m and a further 26.89sqm area of private open space within the front building line, a total area of 38.89sqm. Unit 5, an adaptable two bedroom unit has a 13.8sqm courtyard with a further 70.49sqm of private open space forward of the building line. 10. Part 03 of the RFDC contains Building configuration provisions including those for apartment layout. The objectives of the provision are: * To ensure the spatial arrangement of apartments is functional and well organised. * To ensure that apartment layouts provide high standards of residential amenity. * To maximise the environmental performance of apartments. * To accommodate a variety of household activities and occupants' needs. 1. Indicative layouts for a range of unit sizes and orientations are provided as sketches to the clause accompanied by descriptors for better design practice. A table that accompanies those illustrations. These examples are a comparative tool for recognising well-organised, functional and high quality apartment layouts. The Rules of Thumb associated with this issue provide further guidance including a provision that states: If council chooses to standardise apartment sizes, a range of sizes that do not exclude affordable housing should be used. As a guide, the Affordable Housing Service suggest the following minimum apartment sizes, which can contribute to housing affordability: (apartment size is only one factor influencing affordability). Those sizes for affordable units are: 1 bedroom apartment 50sqm, 2 bedroom 70sqm and 3 bedroom 95sqm. The range of sizes for standard units varies depending on orientation. For 1 bedroom this ranges from 50sqm to 63.4sqm, 2 bedroom from 80-90sqm and for 3 bedroom, all 124sqm. 2. The council contends the area of units 18 and 19 are unacceptable. Unit 18 is a 2 bedroom corner unit with an area of 68.57sqm and unit 19 a 3 bedroom corner unit with area of 89.92sqm. The RFDC recommends areas of 80sqm and 124sqm or 70sqm and 95sqm for affordable housing units respectively. 3. The RFDC recommends that storage areas are provided for all units and provides rules of thumb in terms of areas that should be met. In addition, its better design practice states that at least 50 percent of the required storage is provided within each apartment. The plans provide for some storage within apartments and the remainder within the basement. Ms McGrath advised that units 5 and 12 do not provide 50% of the storage space within those units. This issue was explored with the experts who agreed that it would be possible to accommodate the 4 cubic metres required within those units and that a condition of consent reflecting that requirement could be prepared. Conclusion and findings 1. The expert evidence is that there are no reasons why consent should be refused and agreed conditions of consent have been prepared which reflect the minor changes required to ensure consistency with the recommendations of the experts as a result of the matters raised in the supplementary report and the issues discussed during the hearing. 2. The remaining issues for the Court to determine are, whether, in the event that a second lift access is provided, whilst not part of the plans before the Court, that structure should be allowed. Compliance with the DCP in relation to the location of PPOS and the rules of thumb in the RFDC for minimum unit size and location of storage areas are the other remaining contentions. 3. In terms of the development standard for height, it would appear that there are three approaches, the first, would not be consistent with that put forward on behalf of the applicant and have only one part of the rooftop common open space accessible from the southern portion of the building and require those within the northern section to either use the stairs to access the northern area or take the lift to the basement and change lifts within that area. The applicant is seeking to ensure that access to the rooftop terraces is equitable and this is desirable and consistent with disability legislation. For that reason, any modification of the plans to provide lift access is considered appropriate. 4. The second option is to consider whether the provisions of clause 5.6 of the LEP could apply. That clause is in the following form: 5.6 Architectural roof features (1) The objectives of this clause are as follows: (a) to create variety in the Hurstville skyline and urban environment, (b) to encourage quality roof designs that contribute to the aesthetic and environmental design and performance of the building, (c) to encourage integration of the design of the roof into the overall facade, building composition and desired contextual response, (d) to promote architectural design excellence. (2) Development that includes an architectural roof feature that exceeds, or causes a building to exceed, the height limits set by clause 4.3 may be carried out, but only with development consent. (3) Development consent must not be granted to any such development unless the consent authority is satisfied that: (a) the architectural roof feature: (i) comprises a decorative element on the uppermost portion of a building, and (ii) is not an advertising structure, and (iii) does not include floor space area and is not reasonably capable of modification to include floor space area, and (iv) will cause minimal overshadowing, and (b) any building identification signage or equipment for servicing the building (such as plant, lift motor rooms, fire stairs and the like) contained in or supported by the roof feature is fully integrated into the design of the roof feature. 1. By designing the lift over run as an architectural roof feature, the provisions of this clause provide for the 2.5m x 2.5m structure to exceed the 12m height development standard. 2. The third is to consider the objection to the development standard, Exhibit E. That document considers the objectives of the control and the impacts of the structure and follows the requirements of clause 4.6 of the LEP. I consider that in view of the size of the structure, its central location within the roof area, the limited view corridors to the structure and the fact that the lift would provide equitable access to an important area of communal open space, the reasons outlined in the objection are well founded and the variation to the height control could be supported. In the circumstances of the case, compliance with the development standard would be unreasonable and unnecessary. 3. There are no plans before the Court that accurately reflect the lift overrun. For that reason it is appropriate to provide the applicant with the opportunity to further amend the plans to include the second lift overrun and also address the incorrect location of the stairwell and lift that service the southern common open space area on the rooftop. The height of the roof of the lift overruns should not exceed RL45.050 for the southern structure and RL44.250 for the northern structure. 4. The areas of the courtyard spaces to units 1 and 5 do not comply with the DCP controls in terms of the location of the PPOS, however, the area of private open space is compliant for unit 5 and 11.11sqm less for unit 1. All other units meet the DCP controls. The Court notes that the DCP requirements exceed the Rules of Thumb in the RFDC which recommend a minimum of 25sqm of private open space at ground level. Because the courtyard space is partly behind the building line and this is the area that will be the PPOS for each unit, I consider that it is not a reason that would warrant refusal of the application. The fencing details and landscaped treatment of the building alignment have been deemed acceptable by the experts, comply with the DCP and would be consistent with the desired future character of the area. I concur with the evidence of the experts that the location of the site adjacent to a public reserve is a reason not to require strict compliance with the area controls for open space. 5. The area of Units 18 and 19 are 1.43 and 5.08sqm less than that required under the RFDC for affordable units. All other units comply with the RFDC requirements. The experts agree that the design and area of the two non-complaint units is acceptable and, given the minor variation, I do not consider this fact is a reason to refuse consent. 6. The issue of location of storage can be addressed as a condition of consent. 7. Having regard to the evidence, I am satisfied that the development is consistent with the objectives of the planning controls. For the reasons outline above, there are no reasons why consent should not be granted however, it is important that the plans approved reflect the outcomes detailed, in particular the need to provide equitable access to the rooftop common open space areas and limit the extent of variation to the development standard for height. 8. To ensure that the plans are consistent with the discussions of the experts, the applicant should file further plans that reflect this decision. The council is then to finalise conditions of consent that reflect those plans. On receipt of these documents, final orders will be issued in Chambers. 9. The applicant is directed to file plans that reflect the proper location of stair and lift wells as detailed at [33] by 17 December 2014 and the council is to file conditions of consent that reflect those plans by 22 December 2014. 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: 27 January 2015