Land and Environment Court New South Wales Medium Neutral Citation: Sarm Architects Pty Limited v Wollongong City Council [2015] NSWLEC 1101 Hearing dates: 30 March 2015 Decision date: 21 April 2015 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: DEVELOPMENT APPLICATION: dwelling house, development standard for floor space ratio exceeded Legislation Cited: Land and Environment Court Act 1979; Wollongong Local Environmental Plan 2009; State Environmental Planning Policy No 55 – Remediation of Land; State Environmental Planning Policy No 71 – Coastal Policy; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; Environmental Planning and Assessment Act 1979 Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827; Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Texts Cited: Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Sarm Architects Pty Limited (Applicant) Wollongong City Council (Respondent) Representation: Solicitors: Mr J McKee, McKees Legal Solutions (Applicant) Mr J Reilly, Wollongong City Council File Number(s): 11073 of 2014 Judgment 1. Sarm Architects Pty Limited lodged Development Application DA-2014/787 with Wollongong City Council on 10 July 2014 seeking consent to construct a two storey dwelling house and swimming pool at 8 Lighthorse Drive, Woonona. Council refused consent on 24 September 2014 and Sarm is appealing that decision. 2. The main issues in the case are that the dwelling house exceeds the maximum Floor space ratio (FSR) and is inconsistent with a number of the council's planning controls. The site and locality 1. The site is legally described as Lot 41 in DP 207556 and is located on the eastern side of Lighthorse Drive and adjoins a waterfront reserve to the east that runs adjacent to Woonona Beach and includes a walking/bike path known as the Grand Pacific Walk. Its frontage to the road and reserve are 15.24m and 15.405m respectively and site area is 556.4sqm. 2. Development to the north comprises a two storey dwelling house and to the immediate south a single storey dwelling house. A two storey multi-unit housing development adjoins that site however, the majority of development in the vicinity of the site comprises a mix of single and two storey detached dwellings with the area undergoing a transition with smaller homes being replaced by larger dwellings and existing stock being extended and upgraded. Background and the proposal 1. The plans now before the Court vary from those determined by the council and have been amended in an attempt to address the reasons for refusal. The applicant was granted leave by the Court to rely on those plans on 21 January 2015. Changes made include the provision of a mezzanine area within the garage with associated stairways; master bedroom extended by 1m to the east; garage floor level lowered by 170mm to be consistent with the garage at No 10 (north) and changes to the front façade of the building. The council's draft conditions require the garage floor level to be raised to RL 5.24, an increase of 170mm so the change would be nullified however, due to the height of the garage, no consequential change to the remaining floors of the building would arise. 2. Further amendments were made to the plans during the conciliation conference held pursuant to the provisions of s34AA of the Land and Environment Court Act 1979. At the conclusion of that conference, no agreement was reached and the matter returned to Court for a hearing as required under s34AA(2)(b)(i). 3. The plans now before the Court as further amended (Exhibit A) propose a dwelling house to be constructed on a minimum alignment of 5.5m to Lighthorse Drive (garage) and stepping back to 6.7m at the entry and approximately 8m at bedroom 4, the southern extent of the building. 4. A 900mm setback is proposed to the northern boundary and a 1.8m setback to the southern boundary however the first floor cantilevers into that boundary and the setback reduces to 900mm for the first 11.5m along the western extent of the dwelling with the walls aligning at the rear and a consistent 1800mm setback provided. The eaves would be on a consistent 900mm setback along the southern boundary. A horizontal louvred privacy screen has been added to the solid wall that encloses the northern side of the proposed upper level deck off the master bedroom. 5. The garage is larger and higher than would usually be required to accommodate two vehicles and this is because the owners have a boat which they wish to store within the area. The ground floor of the dwelling is elevated approximately 700mm above what would be the finished floor level of the garage, store, laundry and lower portion of the covered area that surround the proposed pool. The pool and deck and main ground floor would be erected at RL5.92, in the vicinity of 1m above ground level. The ground floor contains a living area, three bedrooms and bathroom. 6. A mezzanine area is proposed at the eastern end of the garage with the area to its west a void area above the remaining garage space and a storage loft around the western and southern perimeter of the space. The mezzanine contains an irregular shaped area with sink and a bathroom. It has highlight windows along the northern wall and these windows extend along the void space above the garage. Venetian shutters screen an opening between the mezzanine and void area. Access to the mezzanine is from the midpoint of a stairway that connects the ground and upper (first) floors of the dwelling and a separate stairway from the garage. 7. The upper floor is split level and contains, on the northern side at the higher level, the master bedroom, ensuite and robe area with a deck to the east and north of that space and a lounge, kitchen and living room along the southern side that also opens onto a deck. 8. All levels, other than the mezzanine, would be connected by a lift. The planning controls 1. The site is zoned R2 Low Density Residential under Wollongong Local Environmental Plan 2009 (LEP). Clause 2.3(2) requires a consent authority to have regard to the objectives of the zone when determining a development application. The objectives of the zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. Dwelling houses are permitted with consent in the R2 zone. 2. Part 4 of the LEP provides Principal Development Standards and those relevant to the site are clauses 4.3 – Height of Buildings and 4.4 – Floor Space Ratio (FSR). The standards as they apply to the site are a maximum height of 9m and FSR of 0.5:1. The proposal complies with the development standard for building height however exceeds that for FSR. 3. Clause 4.6 provides for exceptions to development standards and the applicant relies on a written objection to the FSR standard. 4. Wollongong Development Control Plan 2009 (DCP) applies to the site and in particular, Part A – Introduction; the Residential Development provisions of Part B; the Character Statements in Part D and the parking, landscaping provisions and the waste, floodplain, stormwater and contaminated land management provisions and erosion and sediment controls contained in Part E are relevant considerations. The following clauses are particularly relevant to the contentions in the case. 5. Whereas the LEP has a development standard for maximum building height, clause 4.1 of the DCP has provisions that require that height to be contained in a maximum of two storeys, noting that the number of storeys acceptable will be dependent on the surrounding development, the future desired character of the area and the impacts that the proposed development has on solar access, privacy, visual amenity and overshadowing. In addition, the DCP requires that only single storey development be located within the rear 8m of a site to protect the amenity of adjoining properties. That part of the dwelling house that contains the mezzanine area is 3 storeys and the rear decks, whilst not being fully enclosed, have the appearance of 2 storeys and the height of the roof above the proposed pool is also at that height. 6. The objectives of the storey control are: a) To encourage buildings which integrate within the streetscape and the natural setting whilst maintaining the visual amenity of the area. b) To minimise the potential for overlooking on adjacent dwellings and open space areas. c) To ensure that development is sympathetic to and addresses site constraints. d) To encourage split level stepped building solutions on steeply sloping sites. e) To encourage a built form of dwellings that does not have negative impact on the visual amenity of the adjoining residences. f) To ensure ancillary structures have appropriate scale and are not visually dominant compared to the dwelling. g) To ensure appropriate correlation between the height and setbacks of ancillary structures. h) To encourage positive solar access outcomes for dwellings and the associated private open spaces. 1. Clause 4.2 of the DCP relates to front setbacks and requires a minimum 6m setback for infill development or, where the prevailing street character permits and the future desired character of the area is not prejudiced, a lesser setback determined through a site and context analysis. Regardless of the setback, garages and carports are to be setback a minimum of 5.5m to enable a vehicle to park or stand in front. 2. Side and rear setbacks controls are contained in clause 4.3 and require 900mm setback except where walls exceed 7m and then the setback is increased to 3m. Balconies and windows of habitable rooms (Excluding bedrooms) are to be designed to minimise any direct overlooking impact on adjoining properties. 3. Clause 4.6 applies to solar access with the relevant objective to minimise the loss of sunlight to living areas and private open space areas of adjoining properties. The control requires that windows of living rooms of adjoining dwellings and at least 50% of the private open areas must receive at least 3 hours continuous sunlight between 9am and 3pm on 21 June. 4. Building form and character objectives and controls are contained in clause 4.7 and are to respond to the natural and built context, the existing and future character of the area and contribute to the locality through a design that considers building scale, from, articulation and landscaping. 5. The DCP contains character statements and for Woonona, the Desired Future Character (DFC) is described in clause 3.16 as follows: Woonona is likely to experience continued growth as a result of the developing residential release areas as well as the replacement of older dwelling stock with larger dwelling-houses. Woonona should remain a relative low density residential suburb, except for along the Princes Highway and in close proximity to Woonona railway station where medium density housing in the form of townhouses and residential flat buildings will be encouraged. Individually designed dwellings with a distinctive coastal character are encouraged for the eastern coastal part of Woonona. Balconies should be lightly framed in stainless steel and / or timber finishes, rather than of brick or masonry construction. For the central and western parts of Woonona, dwelling-houses and medium density housing should be of a face brickwork wall construction with pitched tile or colourbond roof forms preferred. The Woonona retail and business centre functions as a large neighbourhood centre serving a predominantly residential area to the east and west of the Princes Highway. The role and function of this centre will continued to be focussed on providing daily convenience goods and services and only limited capacity to meet weekly shopping needs. Any new retail or business development in Woonona shall be contained within the confines of the existing business precinct. The residential area between Hollymount Estate and south of Grey Street is recognised for its special "heritage" character and tree lined streets and hence, any alterations and additions to dwellings or new dwellings must be sympathetic with the character of this locality. 1. Further mention of the "coastal character" is made in clause 4.14 – Development near the Coastline with buildings to incorporate the following design features: (a) Development should generally be designed in a contemporary Australian coastal style which incorporates elements such as varied roof lines, a modest scale, light weight materials where appropriate, wide eaves and covered outdoor living areas, and consistent with the desired future character outlined for the relevant suburb or locality as contained in Character Statements in Part A of the DCP. (b) Consideration is to be given to the appearance of buildings from all public areas. Buildings are to be well articulated by the use of such features as indentations, off-set wall alignments, shading devices, balconies, window openings, awnings, and a mix of external materials and/or colours. (c) Skillion and/or peaked roof forms with overhangs, which bring the roof line down towards the earth and therefore blend with the landscape, are preferred on sites adjacent to coastal foreshores. (d) Buildings must not incorporate an unbroken horizontal elevation of more than 16 metres in length. Elevations are to be broken up by building articulation and/or variation in external colours and materials. (e) Buildings shall be designed to utilise a composite of construction materials (such as a combination of masonry, glass, timber, weatherboard cladding and powder coated metal). The preferred roofing material is corrugated metal sheeting similar to "Colorbond®". (f) In most instances the use of low-reflective materials will be required although this may vary in circumstances where a building seeks to echo the existing character of part of a neighbourhood (as reflected in the desired future character statement contained in Part A of the DCP). The use of curtain wall glazing and large expanses of framed glass will not be permitted in the vicinity of main roads in order to minimise reflectivity impacts. (g) Colour schemes are to incorporate a mix of finishes drawn from colours found in the natural environment of the coastline. This does not however preclude the use of colour highlights on façade elements. Colour schemes in visually exposed areas must be recessive (i.e. backdrop colour or darker) to allow the development to blend with the coastal landscape. 1. View sharing provisions are contained in clause 4.15 with three objectives: (a) To encourage view sharing from adjoining or nearby properties, public places, and new development. (b) To protect and enhance significant view corridors from public places. (c) To encourage the siting and design of new buildings which open up significant views from public areas. 1. Particular controls raised by the council require: (a) Appropriate siting of the building on the land so as to provide a strip of land, unencumbered with structures, down one side of the dwelling. This strip of land must be a minimum width of 3m or 25% of the lot width whichever is the greater. (b) A reduced view corridor width may be accepted, where it is located adjacent to a view corridor on the adjacent site, subject to the combined width having a minimum of 4m. 1. State Environmental Planning Policy No 55 – Remediation of Land; State Environmental Planning Policy No 71 – Coastal Policy and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 are also relevant environmental planning instruments however are not in contention. The issues 1. The contentions in the case the proposed development exceeds the maximum FSR and the objection to that development standard is not well founded and therefore results in a building that is incompatible with the bulk and scale of other buildings in the locality and the DFC. The other contentions are non-compliance with controls contained in the DCP, in particular the storey, side setback, solar access, built form and character and coastline development controls and the Woonona Character Statement and the development results in adverse impact upon adjoining properties. The evidence 1. The hearing commenced on site as a conciliation conference pursuant to the provisions of s34AA of the Land and Environment Court Act 1979. Prior to the conference, the Court heard from a number of objectors to the proposal and inspected the property to the immediate south of the site where it heard evidence from the owners of that property. The matters raised are summarised as follows: * Development is out of character with the area, too large, too high, too close to the boundary; * View loss; * Overlooking/privacy impacts; * Overshadowing; 1. During the conciliation process, a number of matters raised by objectors and reflected in the contentions were resolved and are addressed in the amendments made to the plans. The issues outstanding are outlined at [29]. 2. Expert town planning evidence was heard from Mr A Tuxworth for the applicant and Ms M Byrne for the council. 3. The experts agree that the FSR development standard is exceeded despite the amendments made to the plan and estimate the reduction in gross floor area to be only 5sqm so the FSR would be 0.55:1 whereas the maximum is 0.5:1, a difference of 28.6sqm. 4. They also agree that the side setbacks meet the controls of clause 4.3 of the DCP; that access to sunlight is available to the living room of the proposed dwelling provided that the roof over the pool is setback from the northern wall of the upper floor living room by 1.2m and that the provisions of clause 4.14 of the DCP are not met. 5. Mr Tuxworth prepared the written objection to that development standard (Exhibit D) and argues the proposed development is consistent with the objectives of clauses 4.4 and 4.6(1)(a) and (b) of the LEP, was unreasonable and unnecessary in the circumstances of the case, that there are sufficient environmental planning grounds to justify contravention of the standard and to do so would be in the public interest. 6. Mr Tuxworth says the proposed development is consistent with the objectives of the FSR development standard because the dwelling is appropriate in relation to the size of the site, the additional floor space will not result in an increase in demand on the infrastructure available to service the site and will not result in any discernible increase in vehicle and pedestrian traffic, the additional floor space, at just under 10% above the standard, is minimal and the development is compatible with the bulk and scale of recently constructed dwellings in the locality. 7. He cited a development inspected during the site view at No 62 Beach Drive however conceded that development whilst a larger building, did comply with the FSR controls and was constructed on a larger allotment. He says the additional gross floor area does not significantly add to the bulk and scale of the building as the design of the proposed dwelling has incorporated a variety of different cladding materials, extensive vertical and horizontal articulation including stepping of the external facades to provide increased setbacks which reduces the building's apparent bulk and scale. The additional floor space will not be discernible when viewed from the street or the reserve and will not lead to any adverse environmental effects on the use or enjoyment of adjoining properties or the public domain as a result of overshadowing or overlooking nor unreasonably impact on existing view corridors. 8. Mr Tuxworth says the additional floor space arises primarily from the mezzanine level within the proposed garage and is contained within the building envelope as it utilises part of the volume of the proposed garage and will therefore not add to the bulk and scale of the building and remains compatible with the DFC of the locality. 9. He concludes that strict compliance would hinder compliance with the objectives of Section 5 of the Environmental Planning and Assessment Act 1979 (EP&AAct), would result in an inflexible application of the development standard and would achieve a lesser outcome which would contravene Clause 4.6(1)(b) of the LEP, the development promoting the orderly and economic use and proper management of the development of the land. The development will provide an appropriate low density response to the natural and built environment in the locality whilst meeting the housing needs of its occupants. 10. Ms Byrne says that despite the relatively flat site of regular shape, the proposal exceeds the development standard and the non-compliance adds bulk and scale that is not representative of dwellings in the immediate area. In addition, the design of the garage component, with a ceiling height of approximately 5m, significantly adds to the bulk of the building, the garage scale not balancing with the size of the dwelling. Incorporating a mezzanine level above the garage and below the upper storey does not ameliorate the bulk and scale, which is considered excessive and unreasonable. The undesirable impact of the proposal is the result of the design which has not paid sufficient attention to the FSR development standard. She says the balcony due to its solid nature, also contributes to the bulk and overall, the "sum of the parts" results in a very confrontational building, appearing as three storeys when viewed from the street, negatively impacting the streetscape. 11. In relation to the DCP requirement for the maximum of two storeys, Ms Byrne says the dwelling, particularly the front and side elevations negatively impact the streetscape given the proposed size, height and bulk and appears as three storeys when viewed from the street. Mr Tuxworth says the number of storeys acceptable is dependent of the surrounding development, the DFC and the impacts that the proposed development has on solar access, privacy, visual amenity and overshadowing. Because the three storey section is located at the northern end of the building and the structure is two storeys on the southern side, those impacts are reduced. Conclusion and findings 1. For consent to be granted, I must be satisfied that the applicant's written request that seeks to vary the FSR development standard meets the requirements of clause 4.6(3) of the LEP and the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. I must also have regard to those matters the Director General would consider in determining whether to grant concurrence to the exception. Clause 4.6(3) is in the following form: (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. 1. Preston CJ, in Wehbe v Pittwater Council [2007] NSWLEC 827, established a number of ways of determining whether compliance with a development standard is unreasonable or unnecessary in the circumstances of the case. The most common approach is to establish that compliance with the objectives of the control is achieved notwithstanding non-compliance with the particular standard. 2. The objectives of the FSR development standard are: (a) to provide an appropriate correlation between the size of a site and the extent of any development on that site, (b) to establish the maximum development density and intensity of land use, taking into account the availability of infrastructure to service that site and the vehicle and pedestrian traffic the development will generate, (c) to ensure buildings are compatible with the bulk and scale of the locality. 1. There is no evidence that suggests that objective (b) is not met in terms of the availability of infrastructure and vehicle and pedestrian traffic generation. 2. Objective (a) has the effect of determining the size of a building relative to the site area, that is the larger the site, the larger the building and conversely, a small site would only suit a small building. The FSR for the site contemplates a building with a gross floor area (GFA) that is half the site area and whilst, as Mr McKee submits, such a controls is a "blunt tool", it does provide guidance as to the scale of development that would be suitable for the site. 3. The FSR development standard as it applies to the site envisages a building with a maximum GFA of 278.2sqm. The proposed GFA exceeds the standard by 28.6sqm or 10.28%. 4. In assessing compatibility, the principles in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 provide guidance. The LEP and DCP clearly envisage change will occur in Woonona. That change does not envisage sameness, it envisages that dwellings will be of varying size depending on the area of land on which they are erected. The DFC for the suburb outlines the likely future character of the area. As Roseth SC says in Project Venture: It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 1. The DFC envisages larger dwellings whilst maintaining a low density suburban environment. Dwelling of modest scale with a coastal design that incorporates lightweight elements are the form of development sought along the eastern area which includes the site. 2. I do not consider that the proposed building would be compatible with the DFC for the locality. That is because it is of a bulk and scale that exceeds that character. Those physical impacts will adversely affect the streetscape and not be in harmony with the character of the coastal area. It does not respond to the essential elements that have been identified as making up the future character. In particular, those elements that add to the bulk are, in addition to the floor space, the solid balustrading, elevated floor levels, mezzanine and void within the garage, roof over the pool and the privacy screens required to address overlooking. When combined with the additional floor space, the development would not be compatible with the DFC and is certainly not compatible with the existing character of the area. The additional floor space and building bulk impacts on view loss from the adjoining property and also reduces the amount of sunlight enjoyed on that property. 3. For these reasons, I do not consider the objectives of the development standard are met. Nor am I satisfied that there are sufficient environmental planning grounds to justify contravening the standard. The only reason that has been proffered by the applicant is that a large dwelling is required to meet the needs of a large, extended family and to accommodate a boat. These private purposes, whilst an honest expression of need, are not reasons to ignore the public interest of upholding a development standard that has been consistently applied by the council. 4. The objectives of the zone are, in terms of dwelling houses, to provide for the housing needs of the community within a low density residential environment. The second objective is only relevant to land uses other than housing and is therefore not applicable to my consideration. As the proposed development comprises a single dwelling house on the site I am satisfied that it would be consistent with the objective of the zone however the scale of that development is not consistent with the form of development envisaged for the locality. 5. For these reasons, I am not satisfied that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and consent cannot be granted. 6. The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA-2014/787 for the construction of a two storey dwelling house and swimming pool at 8 Lighthorse Drive, Woonona is refused consent. 3. The exhibits, other than exhibits A and 8, 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: 21 April 2015