Land and Environment Court New South Wales Medium Neutral Citation: OPM Works Pty Limited v Burwood Council [2015] NSWLEC 1166 Hearing dates: 6 May 2015 Decision date: 19 May 2015 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: Residential flat building, issues raised by objectors Legislation Cited: Land and Environment Court Act 1979; Environmental Planning and Assessment Act 1979; Burwood Local Environmental Plan 2012; 24 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development Texts Cited: Burwood Development Control Plan; Residential Flat Design Code Category: Principal judgment Parties: OPM Works Pty Limited (Applicant) Burwood Council (Respondent) Representation: Solicitors: Mr A Hudson, Wilshire Webb Staunton Beattie Ms K Law, Matthews Folbigg Pty Ltd File Number(s): 10745 of 2014 Judgment 1. OPM Works lodged Development Application 121/2014 with Burwood Council on 5 August 2014 seeking consent for a 9 storey mixed commercial and residential development comprising 4 ground level commercial premises and 27 residential units over 4 basement carparking levels with 36 car parking spaces and internal alterations and retention of a heritage item at Nos 10 and 12 Burwood Road, Burwood. 2. The council had not determined the application within the prescribed period and OPM is appealing its deemed refusal. 3. The applicant has prepared amended plans that address the contentions in the case. The site and locality 1. The site comprises two adjoining allotments, Lots 4 and 5 in DP 771894 known as Nos 10 and 12 Burwood Road, Burwood. The site is dual fronted to Burwood Road (19.2m) and Webbs Lane (19.315m), is rectangular in shape with a depth of 33.575m and area of 644.6sqm. 2. A single storey cottage occupies No 10 with a 2 storey Victorian terrace house at No 12, one of a pair that includes No 14 Burwood Road, a listed heritage item. Immediately adjoining that pair of dwellings to the south is a 9 storey mixed commercial and residential building. 3. To the north the site adjoins a single storey cottage with outbuilding with 2 storey commercial premises further north towards Parramatta Road. 4. A mix of 1, 2 and 3 storey commercial premises are located to the west across Burwood Road. 5. The rear yards and garages of Esher Street residential dwellings are located across Webbs Lane to the east of the site Background and the proposal 1. Conciliation conferences were held prior to the hearing and as a result of those discussions the applicant has prepared amended plans that address the contentions in the case. The matter was not resolved during that process and the conference terminated and proceeded directly to a hearing in accordance with the provisions of s34(4)(b)(i) of the Land and Environment Court Act 1979. 2. The applicant sought and was granted leave to rely on those amended plans (Exhibit A) subject to payment of the council's costs arising under s97B of the Environmental Planning and Assessment Act 1979 (EP&AAct) as agreed or assessed. 3. The amended proposal provides for: * A part 2 and part 9 storey mixed commercial and residential development with four basement car parking levels containing 35 spaces and a car wash bay, 2 ground level commercial/retail suites and 26 residential units above; * Retention and restoration of the front portion of the existing two storey heritage item at No 12 Burwood Road for use as commercial premises and demolition of later additions to the rear. 1. The existing terrace building is setback from Burwood Road and it is proposed to provide a ground level setback of 5.175m to the two new commercial tenancies to ensure sightlines to the heritage item are preserved and its context in the street retained. The balconies of the first floor units would extend partially within that setback to within 4.375m of the front boundary however the main building structure is setback 7.225m at first floor level, 8m at levels 2 to 7 and 11.6m at the top floor, level 8. 2. The building is proposed to be constructed to the side boundaries, consistent with the existing heritage item and also to the rear boundary to Webbs Lane at the ground floor and levels 1 and 2. The 2 storey element is located to the rear of the heritage item and would include a roof top terrace. Levels 3-7 of the northern building would be setback 4m from Webbs Lane with level 8 having an 8.037m setback. The setbacks to the rear lane accord to those required under the council's development control plan. 3. Pedestrian access would be off Burwood Road from a pathway and covered ramp that opens to a central courtyard to the north of an enclosed private open space area to be developed to the rear of the terrace building. Vehicle access would be from the rear of the site off Webbs Lane. 4. The unit mix comprises 5 x bedsitter, 8 x 1 bedroom, 12 x 2 bedroom and 1 x 3 bedroom apartments. The planning controls 1. The site is zoned Mixed Use B4 under Burwood Local Environmental Plan 2012 (LEP). Commercial premises and residential flat buildings are permitted with consent in that zone. Clause 2.3 requires a consent authority to have regard to the objectives of a zone when determining a development application. The objectives of the B4 zone are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. 1. Part 4 of the LEP provides principal development standards. Those relevant to the application are clauses 4.3 Height of buildings, 4.4 Floor Space Ratio (FSR) and 4.4A Exceptions to Floor Space Ratio. The site has a maximum building height of 30m and FSR of 3:1 of which that part of a building used for the purpose of residential accommodation must not exceed 2.7:1. 2. The proposal has a maximum height of around 29.5m and is therefore compliant with the provisions of clause 4.3 of the LEP. 3. The total floor space ratio (FSR) of the building is 2.99:1 of which the 3 commercial suites comprise a FSR of 2.34:1 and the residential units a FSR of 2.65:1 so is also compliant. 4. Those sites to the east of Webbs Lane are zoned R2 Low Density Residential and are subject to a maximum building height of 8.2m and FSR of 0.55:1. 5. Nos 12 and 14 Burwood Road are listed heritage items (Item No 16) identified as semi-detached houses of local significance. The site is also in the vicinity of Item 94, the Bath Arms Hotel, (corner of Burwood and Parramatta Roads) also of local significance. The provisions of clause 5.10 of the LEP apply and require consent for the demolition/alterations to the existing terrace house. No contention is raised in relation to any potential impact arising from the development to the heritage significance of the hotel. 6. The site is also identified as requiring an active street frontage pursuant to the provisions of clause 6.3 of the LEP which is in the following form: (1) The objective of this clause is to promote uses that attract pedestrian traffic along certain ground floor street frontages in Zone B4 Mixed Use. (2) This clause applies to land identified as "Active street frontage" on the Active Street Frontages Map. (3) Development consent must not be granted to the erection of a building, or a change of use of a building, on land to which this clause applies unless the consent authority is satisfied that the building will have an active street frontage after its erection or change of use. (4) Despite subclause (3), an active street frontage is not required for any part of a building that is used for any of the following: (a) entrances and lobbies (including as part of mixed use development), (b) access for fire services, (c) vehicular access. (5) In this clause, a building has an active street frontage if all premises on the ground floor of the building facing the street are used for the purposes of business premises or retail premises. 1. The Burwood Development Control Plan (DCP) applies to the site and the relevant provisions are found at 3.3.3 Area Based Controls – Burwood Road North. 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 matters for consideration. The issues 1. The original contentions in the case related to FSR, heritage, urban design, onsite access, manoeuvring and services and matters raised in submissions to the council in response to notification of the plans. 2. The council advises that the amended plans have addressed all of these contentions. Ms Law provided written submission to the Court which explains how those plans address the contentions in the case and the relevant matters for consideration. The evidence 1. The original conciliation conference commenced on site with evidence heard from a number of objectors to the proposal. The issues raised at the time are summarised as follows: * Excessive bulk, scale, height and consequential amenity impacts particularly overlooking, overshadowing, traffic, safety and parking. * Adverse visual impact. * Inadequate setbacks. * Adverse impacts to heritage item. * Amenity issues associated with construction and possible damage arising from the excavation of the site. * Loss of property values. * Isolation of adjoining site, No 14 Burwood Road. 1. The council has renotified the amended plans and received two submissions. The issues raised in those submissions are consistent with those described above. 2. One objector provided evidence to the Court and in particular expressed concerns in relation to the bulk, size, scale of the building; overshadowing and amenity impacts; inadequate setbacks; the additional traffic that will use Webbs Lane and safety concerns in regard to use of that lane; and the need to relocate vehicle access to the site from Burwood Road. 3. Expert town planning evidence was heard from Mr S Harding for the applicant and Mr M Sue for the Council. They prepared a joint report, Exhibit 2, and agree that all of the contentions in the case have been addressed through the amendments made to the plans and that there is no reason why consent should not be granted. 4. They agreed that the FSR of the development was compliant with the relevant provisions of the LEP. 5. In relation to the location of vehicle access, Mr Sue says that it would not be appropriate for access off Burwood Road due to the heavy traffic that uses that road and the poor aesthetic outcome that it would deliver. Mr Harding says that Webbs Lane is a service lane, is 6m wide and therefore the appropriate access point that links to Burwood Road to the north of the site. He agrees that it would be undesirable to have access to Burwood Road where the laneway provides an alternate option as this could cause pedestrian/vehicle conflicts and would be a poor aesthetic outcome. 6. Mr Harding says the zero boundary setbacks are appropriate in the particular circumstances of the case and address the objectives of the RFDC, provide solar access to the properties to the east and deliver a more appropriate urban design outcome in the business zone. Mr Sue agrees the setbacks are appropriate and notes the draft consent conditions require privacy screens to the rear balconies to address any potential overlooking of dwellings to the east. 7. Solar access to the units within the proposed development and to adjoining properties accord to the DCP requirements and Mr Harding says the building performs well. 8. Evidence of actions taken to consolidate the site with the adjoining site No 14 Burwood Road was tendered to the Court (Exhibit F). It is agreed that this site has limited development potential due to its existing floor plate and proximity to the adjoining residential flat building. Accordingly, the council did not consider that it would be an 'isolated' site and no longer presses that contention. Conclusion and findings 1. Having regard to the evidence I am satisfied that the development is consistent with the B4 zone objectives, has an active street frontage as required under clause 6.3 of the LEP and will not adversely impact the heritage significance of the heritage item. 2. The development provides for less building height and FSR than provided for under the council's development standards and is compliant with the DCP controls for solar access. The council has recommended conditions of consent to deal with potential overlooking issues. The council is also satisfied that the development meets the objectives of SEPP65 and the RFDC, 3. Access to the site from Webbs Lane is, according to the experts the most appropriate location and I am satisfied that the width of that lane is adequate for that purpose and accept the evidence that no safety issues will arise. 4. The amended plans address all of the contentions in the case and I am satisfied by the evidence provided that this includes the matters raised by objectors. 5. Clearly the residents of Esher Street will be faced with a building that is significantly taller than that which currently exists on the site however that it what is contemplated by the council's planning controls. 6. There being no reasons why consent should not be granted, the Orders of the Court are: 1. The applicant is granted leave to rely on the amended plans, Exhibit A, subject to payment of the council's costs arising under s97B of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development Application 121/2014 for the construction of a part 2 and part 9 storey mixed commercial and residential development with four basement car parking levels containing 35 spaces and a car wash bay, 2 ground level commercial/retail suites and 26 residential units above and the retention and restoration of the front portion of the existing two storey heritage item and demolition of later additions to the rear for use as commercial premises at Nos 10 and 12 Burwood Road is approved subject to the conditions in Annexure A. 4. The exhibits, other than exhibits A and E, are returned. _____________ Sue Morris Commissioner of the Court 10745 of 2014 Morris (C) (169 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: 19 May 2015