Land and Environment Court New South Wales Medium Neutral Citation: EPS Constructions Pty Ltd v Holroyd City Council [2015] NSWLEC 1253 Hearing dates: 5 May 2015 Date of orders: 10 July 2015 Decision date: 10 July 2015 Jurisdiction: Class 1 Before: Pearson C Decision: 1. The appeal is upheld. 2. Development application DA2012/315 as amended for the demolition and erection of a mixed use development containing two retail units and seven residential units above a basement parking level at 1-7 Elvina Street Greystanes is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits 1, 3 and E. Catchwords: DEVELOPMENT APPLICATION – Mixed use development – Retail and residential units – Affordable rental housing – Visual privacy – Overshadowing – Compatibility with character of area Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Holroyd Local Environmental Plan 1991 Holroyd Local Environmental Plan 2013 Cases Cited: Doolan v Strathfield Municipal Council [2014] NSWLEC 1212 EPS Constructions Pty Ltd v Holroyd City Council [2013] NSWLEC 224 EPS Constructions Pty Ltd v Holroyd City Council (No 2) [2014] NSWLEC 126 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Category: Principal judgment Parties: EPS Constructions Pty Ltd (Applicant) Holroyd City Council (Respondent) Representation: Mr C Gough, Storey & Gough Solicitors (Applicant) Ms K Gerathy, HWL Ebsworth Lawyers (Respondent) File Number(s): 10887 of 2013 Judgment 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to Development Application DA2012/315 for the demolition and erection of a mixed use development containing two retail units and 8 residential units above a basement parking level at 1-7 Elvina Street Greystanes (the site). 2. As originally lodged on 3 August 2012, the development application proposed a part 3 storey/part 4 storey development, and included 2 x retail units at ground level, 1 x 1 bedroom and 1 x 2 bedroom residential units on ground level, 4 x 2 bedroom residential units on level 1, and 2 x 2 bedroom units on level 2 proposed under State Environmental Planning Policy (Affordable Housing) 2009 (the ARHSEPP). The Council refused consent on 15 January 2012 and the applicant sought a review under s 82A of the Act. The applicant lodged this Class 1 appeal against the refusal of the s 82A application on 15 November 2013. 3. On 20 December 2013, on the application of the Council, Biscoe J ordered separate determination of two questions, being whether the application was for "prohibited development", and if not prohibited, whether cl 10(1) of the ARHSEPP applied to the development application: EPS Constructions Pty Ltd v Holroyd City Council [2013] NSWLEC 224. On 25 August 2014 Sheahan J determined the second question in the applicant's favour, the Council having conceded that on reconsideration it was of the view that the proposed development was not prohibited and that the first question should be answered in the negative: EPS Constructions Pty Ltd v Holroyd City Council (No 2) [2014] NSWLEC 126. 4. The matter was subject to a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) which was held on site on 17 October 2014. On that occasion, submissions were made by 10 objectors. Discussions between the parties continued, culminating in amendments to the plans on 23 December 2014, which were re-notified. The parties were unable to reach agreement, and the conciliation was terminated. The parties consented to my determining the appeal under s 34(4) of the Court Act, and to the evidence from the site view forming part of the evidence in the proceedings. The hearing was held on 5 May 2015, and on that occasion three of the objectors who had given evidence on site gave further evidence, responding to the amended plans. 5. The evidence before the Court included the written submissions made by objectors in response to the original development application, and to the amended application (ex 5). Expert planning evidence was provided on behalf of the applicant by Mr David Haskew, and on behalf of the Council by Mr Andrew Robinson. The experts provided a joint report (ex 2) and gave oral evidence. The proposed development 1. The proposed development as amended now provides for the two ground level retail tenancies, 7 residential units, and 9 basement car parking spaces. The vehicle access is along an existing driveway off Gozo Road along the rear of the site which services the existing commercial tenancies. In addition to internal stairs from the basement car parking to the ground level, there is pedestrian access from Elvina Street up a ramp located between the two retail units. 2. On the ground level are the two retail units (82.07sqm and 89.40sqm respectively), unit 1 (an accessible 1 bedroom unit) and the lower levels of units 3, 4, 5, 6 and 7, all 2 bedroom units. On the first floor is unit 2 (a 2 bedroom unit) and the upper levels of units 3, 4, 5, 6 and 7. Units 3, 4, 5, 6 and 7 have a balcony on the northern side of the building on the upper level off the living/dining area, and a terrace off a bedroom on the southern side of the building. There is a landscaped planter along the southern side of the building. Unit 1, on the ground floor, has a balcony on the south west corner of the building, and unit 2 has a balcony on the north west corner of the building. There are aluminium framed privacy screens proposed for the first floor windows on the southern side of the building. Issues 1. The Council initially contended that consent should be refused on the basis that the height of the proposed development was unacceptable as it was not compatible with the existing and likely future streetscape character and scale of surrounding development; the proposed landscaped area was unacceptable; the proposed development was out of character with existing and likely future built form of the locality, and would have an unacceptable impact on adjoining development particularly in relation to overshadowing and privacy impacts; the site was not suitable for the development; and based on the submissions received and the public interest. 2. The Council amended its contentions following the amendment of the plans, and at the hearing its contentions as identified in the Amended Statement of Facts and Contentions (ex 1) were: 1. that the proposed development would have an unreasonable visual impact, in particular on the adjoining property at 14 Gozo Road, and would not provide a sufficient transition in built form and scale to the low density residential zone to the south; and 2. that submissions received are relevant matters for consideration and the development is not in the public interest. The site and its locality 1. The site is located on the south eastern corner of the intersection of Elvina Street and Gozo Road, and is vacant. The site has a fall of approximately 2.12m towards the south. 2. To the immediate east of the site is a single storey commercial building containing three commercial tenancies. At the time of the view one was occupied as a hairdresser, and the others as a pizza café. Across the Elvina Street frontage of the site and continuing across the frontage of the adjoining commercial tenancies is an indented parking bay providing public parking for 14 cars. 3. Directly opposite the site on the northern side of Elvina Street is a two storey dwelling house and a single storey dwelling house. To the rear of the site, at 14 Gozo Road, is a single storey dwelling house. Apart from the commercial tenancies, the surrounding area is an established low density residential neighbourhood characterised by single and two storey dwelling houses. The planning controls 1. At the date the development application was lodged the site was zoned 3(b) Business Neighbourhood under the Holroyd Local Environmental Plan 1991 (the 1991 LEP). The objectives of the 3(b) zone were to "provide for the establishment of retail, commercial and professional services for local residents in convenient locations within residential neighbourhoods so that the scale and type of development is compatible with the character and amenity of the surrounding residential areas". Development for the following purposes was prohibited: Abattoirs; animal establishments; apartment buildings; boarding houses; brothels; bulk stores; bus depots; car repair stations; clubs; dual occupancies; dwellings (other than a single dwelling attached to or used in conjunction with shops or commercial premises); extractive industries; gas holders or generating works; hazardous industries; hazardous storage establishments; heliports; hospitals; industries; institutions; integrated housing; junk yards; liquid fuel depots; medium density housing; mines; mixed use development; motels; motor showrooms; offensive industries; offensive storage establishments; recreation establishments; recreation facilities; residential flat buildings (other than a residential flat building attached to or used in conjunction with shops or commercial premises); restricted premises; roadside stalls; road transport terminals; sawmills; stock and sale yards; taverns; warehouses. 1. Development for any other purpose was permissible with development consent. 2. The Holroyd Local Environmental Plan 2013 (the 2013 LEP) came into force on 5 August 2013. Clause 1.8A of the 2013 LEP provides that the development application is to be determined as if the 2013 LEP had not commenced. 3. Under the 2013 LEP the site is zoned B1 Neighbourhood Centre. The objectives of the B1 zone are: • To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. • To enable residential development that is well-integrated with, and promotes, community activity. 1. Development for the following purposes is permissible with development consent: Boarding houses; Business premises; Car parks; Child care centres; Community facilities; Environmental protection works; Group homes; Home businesses; Home industries; Home occupations; Hostels; Medical centres; Neighbourhood shops; Places of public worship; Recreation areas; Respite day care centres; Restaurants or cafes; Roads; Seniors housing; Service stations; Shop top housing; Shops; Signage; Take away food and drink premises; Veterinary hospitals. 1. Development for any other purpose is prohibited. 2. The land surrounding the site, other than the adjoining commercial tenancies, was zoned Residential under the 1991 LEP, and is zoned R2 Low Density Residential under the 2013 LEP. 3. Part 2 Div of the ARHSEPP provides for infill affordable housing, and under cl 10, applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if the development concerned is permitted with consent under another environmental planning instrument, and the development is on land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977. As a consequence of the application of cl 10 of the ARHSEPP to the proposed development, cl 13 of the ARHSEPP increases the permissible floor space ratio (FSR). Clause 14 provides for standards that cannot be used to refuse consent, and cl 15 provides design requirements. Clause 16A provides: A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 1. At the time of lodgement of the development application the applicable development control plan was the Holroyd Development Control 2007 (the 2007 DCP). The Holroyd Development Control Plan 2013 came into effect on 5 August 2013, and includes a savings provision which states that it applies to development applications lodged on or after that date, and that development applications lodged before that date are to be assessed and determined under the provisions of the 2007 DCP. The relevant provisions in Part B Residential Controls of the 2007 DCP include section 5.0 dealing with visual and acoustic privacy, and section 17.0 dealing with residential flat buildings. Section 17.2 of the 2007 DCP provides for a maximum FSR of 2:1 for a mixed development, namely a residential flat building in a business zone incorporating a commercial portion. As noted above, cl 13 of the ARHSEPP provides for additional FSR where affordable rental housing is provided. Consideration The objector evidence 1. The Council received in response to notification of the original development application 12 letters and two petitions containing 40 and 29 signatories objecting to the proposed development. The main issues raised in those submissions related to loss of solar access, unacceptable bulk and scale, loss of acoustic amenity and visual privacy, out of character with the streetscape, increased traffic and parking issues, and odour from the bin areas. 2. The submissions made on site on 17 October 2014 included those concerns, and concerns as to the impact of the proposal on parking for the existing commercial premises, lack of a need for the retail spaces, access along the rear driveway. The owner of 196 Roberta Street raised concerns as to drainage and loss of privacy in his backyard, and stated that when he rebuilt four years ago he had had to drop the level of his house to avoid overshadowing. The residents of 14 Gozo Road stated concerns as to the height of the proposal and overshadowing, particularly for the vegetable garden at the rear of the property, and loss of sunlight affecting clothes drying, and overlooking. The view included 196 Roberta Street, and the rear of the existing commercial premises from where the rear of 14 Gozo Road was observed. 3. The Council's bundle (ex 5) includes 22 written submissions made in response to the amended plans. Nine of those submissions were by or on behalf of the owners and residents of 14 Gozo Road. The written submissions noted the changes to the plans, however still opposed the proposed development, raising concerns similar to those noted in paragraphs 22 and 23 above. The owners of the existing commercial premises raised concern as to use of the access lane. The submissions on behalf of the owners and residents of 14 Gozo Road raised issues of height, safety on Gozo Road, overlooking, privacy, overshadowing, pollution from the garage doors, noise from vehicles using the access lane, traffic, odours, security, parking, drainage, and stating that the zone should be residential. 4. Ms Angela Attard gave oral evidence at the hearing as to her family's continued opposition to the proposed development, stating concerns in similar terms to those raised in the written submissions. The owners of 196 Roberta Street and 4 Elvina Street also gave oral evidence as to their concerns, the former acknowledging that the amendment was an improvement but there are still issues with drainage, noise, and maintenance of the screen planting; and the latter stating that the proposal is not consistent with the general outlook of the area with six balconies and units proposed opposite his house, and raises issues of safety for children on Elvina Street. Photographs of water runoff into the park on Rachel Street were provided (ex 7), and photographs taken from 14 Gozo Road looking to the rear of the existing commercial premises were viewed during the hearing. The planning evidence 1. In their joint report (ex 2) Mr Robinson and Mr Haskew considered the amended plans in the context of the Council's contentions. They agreed that the configuration and internal layout of units 3, 4, 5, 6 and 7 is acceptable and would provide amenity for the residents by locating the living rooms and private open space of each of those units on the north facing side of the development, and that the location of bedroom 1 on the ground floor and provision of the planter box on the southern side of the development would provide satisfactory visual privacy for the adjoining residential property at 14 Gozo Road. They agreed that the proposed development is satisfactory in terms of solar access to the proposed units as well as overshadowing impacts to adjoining development, and would not result in unacceptable acoustic amenity impacts nor visual privacy impacts on adjoining properties. They agreed that the proposed development is unlikely to result in any significant traffic impacts and that there are no safety or efficiency concerns as a result of the proposed development. 2. Where Mr Robinson and Mr Haskew differed in the joint report was in relation to the appropriateness of the transition in built form and scale at the interface with the adjoining low density residential zone. Mr Robinson's concern was with the south western corner of the development. This issue was explored in oral evidence. In that evidence Mr Robinson expressed the opinion that the presentation of the building as a two storey element with a 4m setback from 14 Gozo Road was a sufficient transition in scale and appearance. Mr Haskew commented that this was a more generous relationship to 14 Gozo Road than that contemplated by the controls. Mr Robinson was satisfied that the 2 storey presentation to Elvina Street is consistent with the existing streetscape. The area is predominantly low density residential in character, however the site is zoned for local business, which would permit small scale commercial or retail activities of benefit to local residents. Mr Robinson noted that he had initially had a concern with the south western corner, and he noted that based on drawing DA06D which shows a 2 storey presentation on a 4m setback with an approximately 8m setback at the upper level, he was satisfied that an appropriate transition and scale are provided. Mr Haskew noted the many changes to height limits in the controls, including a 14m height limit as initially proposed in the draft of the 2013 LEP; the proposal is now some 3m below the 11m permitted under the 2013 LEP. 3. Mr Robinson and Mr Haskew also addressed the safety issues raised by the objectors. Mr Robinson noted the splay on the north western corner, and the wide footpath, and was of the opinion that vehicles moving from Elvina Street to Gozo Road would have a reasonable sight distance. 4. The planners considered the issues of privacy, and overshadowing, in their oral evidence. Mr Robinson noted that the fixed louvres and bedroom location on the southern side of the building would provide adequate privacy for the adjoining property. The planners agreed that a person in the backyard of 14 Gozo Road would not be able to see a person standing up on the rear balcony of the proposed development. The planners considered the revised shadow diagrams provided for the amended plans (ex C), and agreed that the proposed development would cast shadow into the rear yard of 14 Gozo Road on 21 June from 10.00am. That shadow would not reach the vegetable garden at the rear of 14 Gozo Road. The shadow diagrams confirm that the windows on the northern side of the dwelling at 14 Gozo Road will be shadowed, with shadowing into the front yard before 2.00pm. The planners agreed that the property at 196 Roberta Street would not be overshadowed by the proposed development until some time after 2.15pm. 5. The planners agreed that there would be some additional noise on the access lane, depending on the future commercial use of the two retail spaces. Based on the RTA Guide the traffic generation would be in the order of 4-5 vehicles per hour, probably with a tidal flow at the peak, which is low traffic generation. 6. The planners addressed the issue of compatibility with the character of the local area. Mr Robinson was of the opinion that the built form in the local area now includes two storey development, and while the nature of the building would be different to what the residents see now, the proposed development will provide commercial uses that serve the local community as well as the residential component, despite the different built form. Mr Haskew's opinion was that the existing character of the area is itself formed by the B1 zoning; in his opinion the test is not sameness, but consistency with what an observer would expect to see. The planners agreed that neighbourhood business zones are common in the Holroyd area and are part of the overall character of the area. Findings 1. I accept the agreed planning evidence, and based on that evidence I am satisfied that the proposed development provides appropriate amenity for the future residents of the development, in particular by locating the private open space of six of the units on the northern side of the building, and provides appropriate visual privacy for the adjoining and nearby dwellings by means of the privacy screening and planter, and the location of a bedroom, on the southern side of the building. The proposed development is below the height limit, and based on the agreed planning evidence, I am satisfied that the 4m setback from 14 Gozo Road to the two storey element provides an appropriate transition in scale and appearance. 2. The proposed development has overshadowing impacts to 14 Gozo Road, as noted in the expert planning evidence. Those impacts have been reduced with the amendments to the plans, in particular by the avoidance of overshadowing at the rear of the yard where the vegetable garden is located, and a reduction in the overshadowing of the front yard. The expert planners were in agreement that the proposed development is satisfactory in terms of the overshadowing impacts. The primary concern is for the dwelling at 14 Gozo Road. Having regard to the north/south orientation and the topography of the subject site, which would lead to overshadowing impacts on the northern side of that dwelling for any development on the site that complied with the planning controls, I accept that evidence. 3. The proposed development provides three affordable housing units. I accept the agreed planning evidence that having regard to the small number, and the criteria for eligibility which include household income of up to 120% of the average household income for the Sydney Statistical Division, the proposed affordable rental housing is unlikely to have any adverse crime or social impacts. 4. Clause 9(3) of the 1991 LEP provides that consent cannot be granted unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development proposed is to be carried out. The proposed development provides two retail or commercial spaces, similar to those in the existing adjoining commercial building, in a building located in a residential neighbourhood, and I am satisfied that it meets the first part of the zone objective. 5. The objectives of the 3(b) Business Neighbourhood zone under the 1991 LEP further include that the scale and type of development is compatible with the character and amenity of the surrounding residential areas. Clause 16A of the ARHSEPP also requires consideration of whether the proposed development is compatible with the character of the local area. 6. The term "compatible" is considered in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 where Roseth SC adopted the approach that in urban design terms it means "capable of existing together in harmony". As Roseth SC noted, compatibility is different from sameness, and buildings can exist together in harmony without having the same density, scale or appearance. That planning principle has been confirmed in Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167. Adopting that approach, I accept the agreed evidence of the planners that in its amended form, with a two storey presentation to Elvina Street, the proposed development is not so different to that in the locality that it could not be regarded as compatible with it, in particular when regard is had to the existing adjoining commercial development in a neighbourhood business zoning. 7. The proposed development, and the existing commercial premises, adjoin the low density residential area. The particular issues raised by development at a zone interface were considered by Bly C in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117: 25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like. 1. That planning principle has been confirmed in Doolan v Strathfield Municipal Council [2014] NSWLEC 1212. The 2013 LEP continues the existing relationship between the zones, with the site now zoned B1 Neighbourhood Centre and the surrounding land zoned R2 Low Density Residential. I accept the agreed planning evidence, and I am satisfied that the proposed development is compatible with the existing and likely streetscape character and compatible with the scale of the surrounding development, and provides an appropriate transition and scale, and further, that it will not result in unacceptable acoustic amenity impacts or visual privacy impacts on adjoining properties, or significant traffic impacts. Having regard to the planning controls applicable to the proposed development as discussed in the planners' joint report (ex 2), I am satisfied that the proposed development provides an appropriate transition to the low density residential area, and that the impacts are consistent with what could be expected for development in the neighbourhood business zone. At the base of many of the objector submissions was an objection to the zoning of the site, which cannot be a basis on which a development otherwise compliant with the relevant controls could be refused. 2. The Council's position at the conclusion of the hearing was that the amendments to the plans represent a significant improvement, and that the applicant has addressed the contentions as raised by the Council. Having regard to the expert planning evidence, and the applicable planning controls, I am satisfied that the objections raised by the adjoining and nearby residents have been appropriately addressed in the development as now proposed. The proposed conditions include conditions responding to matters raised by the objectors, including condition 115, imposing an obligation on the owner of the property to maintain the approved planting including the screen planting. Conditions 34 and 126 require that the garbage rooms are provided with a hose cock and that the body corporate clean the waste storage area and waste collection containers, consistent with the recommendation of the expert planners to address the objectors' concerns as to odour. The proposed conditions include a number of deferred commencement conditions, including a requirement for further detail of traffic flow management along the access lane, and provision of parking restrictions for the existing on-street angle parking on Elvina Street. Conclusion 1. I am satisfied that the proposed development is of a type and scale compatible with the character and amenity of the surrounding residential area, as required by cl 9(3) of the 1991 LEP, and that it is appropriate that consent be granted subject to the conditions as agreed between the parties. 2. The orders of the Court are: 1. The appeal is upheld. 2. Development application DA2012/315 as amended for the demolition and erection of a mixed use development containing two retail units and seven residential units above a basement parking level at 1-7 Elvina Street Greystanes is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits 1, 3 and E. Linda Pearson Commissioner of the Court 10887 of 2013 Pearson (C) (356 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: 10 July 2015