Land and Environment Court New South Wales Medium Neutral Citation: 5 Bulga Road Pty Ltd v Waverley Council [2015] NSWLEC 1037 Hearing dates: 18 February 2015 Date of orders: 10 March 2015 Decision date: 10 March 2015 Jurisdiction: Class 1 Before: Hussey AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to DA 364/2014 for the demolition of the existing residential flat building at 5 Bulga Road, Dover Heights and the construction of a 4 storey residential flat building containing 6 units with basement parking subject to the conditions in Attachment A. (3) Pursuant to s97B the Applicant is to pay the costs of the Respondent thrown away as a result of amending the development application as agreed in the amount of $14,000 within 7 days. (4) The exhibits be returned except for 1, 3, 4, A, B, and F. Catchwords: Development Application: Residential Flat Building, existing use rights, overdevelopment, view impacts, amenity impacts, parking and traffic. Legislation Cited: E P & A Act 1919 SEPP 65 – Design Quality of Residential Flat Development Waverley LEP 2012 Waverly DCP 2012 Cases Cited: Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 Category: Principal judgment Parties: 5 Bulga Road Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: Mr I Hemmings SC (Applicant) Mr M Staunton (Respondent) Solicitors: Reid & Vesely (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10811 of 2014 Judgment Background: 1. This appeal was lodged against council's refusal of a development application for the demolition of an existing residential flat building (RFB) and subsequent construction of a four storey RFB at 5 Bulga Road, Dover Heights. The initial proposal comprised: 1. 6 x 2 bedroom units and 1 x 3 bedroom apartment; 2. Basement car parking for 7 vehicles; 3. Landscaping; 4. Strata subdivision. 1. There is a 3 – storey RFB existing on the site, which has the benefit of existing use rights. A number of contentions were raised initially which are summarised as follows: * Overdevelopment; in terms of exceedence of the LEP height control and excessive FSR resulting in unacceptable visual bulk. * Streetscape; Unacceptable visual dominance within the street comprising a general low density residential character. * Amenity; Unsatisfactory amenity in terms of overshadowing of adjoining buildings and internal amenity concerning inadequate ventilation and provision of functional private open space. * Resource and energy use and water efficiency. * View loss from neighbouring properties * Parking, in terms of adequacy and suitability of on – site parking. * Public interest, concerning matters raided by objectors involving, traffic impacts both during construction and adequacy of the existing road system, overdevelopment, loss of views and possible noise amenity arising from use of the proposed front balconies. 1. The appeal commenced by way of a s34 Conference, wherein a number of options were discussed relative to the contentions and objections raised. However there was no agreement and the conference terminated and the matter was subsequently re-listed for hearing. A considerable number of amendments were made to the proposal submitted to the Court for assessment. These amendments include: 1. Revised layout reducing the number of units from 7 to 6 and incorporating increased building articulation and landscaping provision. It now proposes 7 basement car spaces. 2. A reduction of approximately 180 mm in the overall height of the building. 3. Increased side and rear boundary setbacks at or above natural ground level and the upper level Unit 6 is further setback to minimise loss of views from adjoining properties. 4. The extent of excavation has been reduced and incorporates backfilling to provide more accessible and useable private open space. The amendments to the ground floor (Unit 1) and first floor (Units 2 and 3) has resulted in an internal layout of apartments with improved solar access and ventilation to key living and sleeping areas. The site: 1. The site has a general north-south orientation and is located on the southern side of Bulga Road. It slopes both across the site generally in an easterly direction and from the rear of the site to Bulga Road. There is a general fall across the site of 2m and the fall from the rear to the front is in the order of 6m. It is rectangular in shape with front and rear dimensions of 16.61 m and side dimensions of 27.58 m. The total site area is 458.1sqm. 2. The site is presently occupied by a 3 storey residential flat building (2 x 1 bedroom and 1 x 2 bedroom apartments) with a single driveway and one at grade car parking space with access from Bulga Road. The existing residential flat building on the site was developed at some time prior to March 1961. 3. The land surrounding the site is characterised by a mix of low and medium to high density residential buildings. The site is located in close proximity to the eastern coastline with Bulga Road ending to the east of the site at a coastal reserve. The locality beyond Bulga Road has a mixed residential character. Planning controls 1. The controls relevant to the development application are: * Environmental Planning and Assessment Act ("EP&A Act") * Environmental Planning and Assessment Regulations 2000 ("EP&A Regulations") * State Environmental Planning Policy (Affordable Rental Housing) 2009 (" SEPP Affordable Housing") * State Environmental Planning Policy 65 - Design Quality of Residential Flat Development ("SEPP 65") * State Environmental Planning Policy 55 - Remediation of Land ("SEPP 55") * State Environmental Planning Policy - Building Sustainability Index (BASIX) 2004 ("SEPP BASIX") * Waverley Local Environmental Plan 2012 ("WLEP 2012") under which the site is zoned R2 - Low Density Residential. * Waverley Development Control Plan 2012 ("WDCP 2012") * Waverly Section 94 Development Contributions Plan. The evidence 1. Detailed evidence was presented in a joint expert report by: * Ms S Francis; Consulting town planner for Applicant, * Ms K Castellanos; Urban design consultant for Applicant, * Ms C Brown; Consulting town planner for Council, * Ms D Ridenour; Urban design consultant for Council, * Dr R Lamb; View impact assessment, which provided separately. 1. The planning and urban design experts undertook a detailed merit assessment of the amended proposal, on the following basis, in order to assess its compatibility within the context of the neighbourhood. This assessment recognised the existing use provisions and involved consideration of the relevant planning instruments as they apply to the surrounding area, generally on the basis outlined in the planning principle Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71, wherein the Senior Commissioner said: 17. Four questions usually arise in the assessment of existing use rights developments, namely: • How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites? While planning controls, such as height, floor space ratio and setbacks do not apply to sites with existing use rights; they have relevance to the assessment of applications on such sites. This is because the controls apply to surrounding sites and indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered in all planning assessment. • What is the relevance of the building in which the existing takes place? Where the change of use is proposed within an existing building, the bulk and scale of that building are likely to be deemed acceptable, even if the building is out of scale with its surroundings, because it already exists. However, where the existing building is proposed for demolition, while its bulk is clearly an important consideration, there is no automatic entitlement to another building of the same floor space ratio, height or parking provision. • What are the impacts on adjoining land? The impact on adjoining land should be assessed as it is assessed for all development. It is true that where, for example, a development control plan requires three hours of sunlight to be maintained in adjoining rear yards, the numerical control does not apply. However, the overshadowing impact on adjoining rear yards should be reasonable. • What is the internal amenity? Internal amenity must be assessed as it is assessed for all development. Again, numerical requirements for sunlight access or private open space do not apply, but these and other aspects must be judged acceptable as a matter of good planning and design. None of the legal principles discussed above suggests that development on sites with existing use rights may have lower amenity than development generally. 1. Insofar as the land is zoned R2 – Low Density Residential under WLEP 2012 and contains a number of development standards, cl 2.3 (2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 1. Accordingly the relevant objective for this zone is: To provide for the housing needs of the community within a low density residential environment. 1. Overdevelopment: The planners noted that whilst the amended proposal has an FSR of 1.28:1 that exceeds the development standard in the LEP, nevertheless they agree that the non – compliance is acceptable in the context of this development and its surroundings. Furthermore, they acknowledge that whilst there is an increase in the bulk, height and scale and intensity compared to the existing RFB on the site, nevertheless the amended design with the increased landscaping and setbacks results in an improved presentation of the building to the adjoining properties and the public domain. 2. The planners also agree that the amended design features of increased setbacks, good articulation, window orientation and provision of landscape areas minimise to an acceptable level any potential privacy impacts on neighbouring properties. Accordingly all planners agree that the overdevelopment contention is satisfied. 3. Streetscape: Part of the amendments included the adjustment of the front balconies to align with the same setback as those on the adjoining RFB at 1 Bulga Road. Consequently the experts consider that the amended design which includes increased setback to side boundaries, splayed side elevations, and additional planters along the side boundaries will increase visual separation and landscaping between buildings and will reinforce the existing pattern of buildings and landscaping along the street. 4. Furthermore, as the proposed development is located between the existing taller residential flat building to the west and a lower dual occupancy development to the east, the planners agree that the amended proposal represents a satisfactory transition in scale from No. 1 to No. 7 Bulga Road. Visually and in terms of scale, height and setbacks, together with the improved landscape setting (to be conditioned) it will result in a development that is consistent with the character of the streetscape. 5. Amenity: This contention mainly related to the internal amenity considerations. Relevantly the planners considered the following elements: * The amendments to the window design and placements will enable cross ventilation without reliance on the large sliding doors in the northern and southern elevations being left open. * The amended layout has introduced operable elements reducing the extent of fixed glazing so introducing additional opportunities to achieve natural ventilation and a quality internal amenity for future residents. * The proposal as shown on the amended plans increases the quantum of landscape open space and relates the private open space better to the associated units providing a functional area of open space with quality amenity for the future residents of the development. No communal open space is proposed and this is considered reasonable in the context of this proposal. * The amended layout and design results in an improved landscape treatment to Bulga Street. WDCP requires 30% of the site to be available as landscaped area. The amended landscape area now proposed will be 37%. This will be increased through the proposed condition requiring additional landscaped area adjacent to unit 1 as shown in the figure below. The requirements of WDCP regarding total landscaped area will be achieved. * The amended proposal incorporates 27.4% deep soil landscaping plus additional areas of landscape area above slabs that are drained and of a soil depth capable of supporting a variety of plant growth. It is considered the objectives of the landscape controls are met by the proposed landscape areas. 1. Consequently, the planners agree the proposal satisfactorily addresses the amenity impact issues and it will not unreasonably impact on impact views from adjoining properties and therefore supports its conditional approval. 2. Resource, energy and water efficiency: This issue concerned the provision of adequate cross ventilation and solar access. The planners agree that this issue is satisfactorily addressed. 3. View loss: This issue concerns possible view loss from units in the adjoining RFB at 1 Bulga Street, particularly Units 6 and 1.These views comprises northerly views towards Diamond Bay and easterly views over the side boundary towards the ocean. 4. The planners now agree that the amended proposal has resulted in a reduction in building height of 180mm, increased building articulation and side and rear boundary setbacks. While the amended proposal will result in the partial loss of ocean and locality views from the private open space and living areas of dwellings in adjacent No1 Bulga Road (Units 3 and 6) and 2/247 Military Road, they consider that the proposal will result in reasonable view sharing. 5. However they consider that in order to protect future views across the subject site from No 1 Bulga Street it is reasonable to impose a condition requiring an amended landscape plan to be prepared detailing landscape treatment to the sites western boundary that will grow no higher than and be maintained at a height not higher than RL 61.51 m AHD, being the height of the roof top of units 4 and 5. 6. Consequently, the experts consider that the lowering of the overall building height, the increased western boundary setbacks and the redesign of the western elevation incorporating 'splayed' elements narrowing the width of the building as it presents to the street also allows for improved views from adjoining properties and presentation to the north are satisfactory to address this issue. 7. Parking: This issue concerned the adequacy and suitability of the proposed parking arrangements. The amended proposal now provides 7 parking spaces, including 1 accessible space. Whilst not a determinative control, these provisions satisfy the car parking requirements of WDCP. A basement turntable is also included to facilitate safe and convenient access. 8. Accordingly the planners agree that the parking issue relative to vehicles, bikes and storage is adequately resolved. 9. Public interest: The development application attracted a considerable number of objections that were considered at both the s34 Conference and the hearing. One of the main concerns related to excessive development of the site, which would likely cause adverse access and traffic problems both during and post development. Whilst I accept there can be some issues with the level of service available due to the alignment of Bulga Street, nevertheless Council does not consider the incremental change arising from the approval of this development sufficient to warrant refusal of the application. 10. A traffic report from Transport and Traffic Planning Associates was submitted on behalf of the Applicant. This assessed parking arrangements and assessed potential traffic implications arising from the development. It concludes that the development will: * not present any unsatisfactory traffic capacity, safety or environmental related implications. * incorporate a suitable and appropriate parking provision. * incorporate suitable vehicle access, internal circulation and servicing arrangements. 1. In the absence of any other expert evidence, I rely on this conclusion that the incremental change arising from the development is acceptable. However I consider it reasonable to include conditions in the Construction Management Plan to ensure construction traffic is managed to minimise disturbance to residents. CONCLUSION 1. Having considered the evidence, the submissions and undertaken a view I am satisfied this application merits conditional consent. 2. The development has the benefit of existing use rights, which enables a development application to be lodged that may have departures from the existing controls. The approach in dealing with these applications was addressed by Pain J in Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587 wherein the planning principles in Fodor were considered and confirmed by Pain J at pars 83-89. 3. Principle 2 was specifically supported in paragraph 87 and principles 1,3 and 4 were specifically supported in paragraph 89. Her Honour states, in para 89, that care must be exercised in the application of the principles to ensure that there is not a de facto application of standards in environmental planning instruments as that is prohibited by s 108(3) of the Environmental Planning and Assessment Act. 4. The merit assessment undertaken by the experts follows the authority in Stromness and accordingly I rely on the agreement of the experts that the amended proposal is satisfactory in the subject context. Whilst the development exceeds some of the numerical standards, nevertheless the existing development in proximity to the site is noticeably variable with a mix of large dwellings, dual occupancies and a 4 storey RFB adjoining At 1 Bulga Street. 5. From my observations at the view I am satisfied the proposal is compatible with the streetscape and will not cause undue amenity impacts on neighbouring properties. I am also satisfied that the proposal reasonably satisfies the zone objective to provide for the housing needs of the community in the low density environment and therefore it merits conditional consent. In this regard, I am satisfied that the conditions of consent can address some of the objectors concerns such as protecting the structural integrity of neighbouring property and traffic control during the construction period. Court Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to DA 364/2014 for the demolition of the existing residential flat building at 5 Bulga Road, Dover Heights and the construction of a 4 storey residential flat building containing 6 units with basement parking subject to the conditions in Attachment A. 3. Pursuant to s97B the Applicant is to pay the costs of the Respondent thrown away as a result of amending the development application as agreed in the amount of $14000 within 7 days. 4. The exhibits be returned except for 1, 3, 4, A, B, and F. R Hussey Acting Commissioner of the Court 10811 of 2014 - Annexure A (124 KB, pdf) ********** 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: 11 March 2015