Land and Environment Court New South Wales Medium Neutral Citation: Tannous v Burwood Council [2015] NSWLEC 1445 Hearing dates: 7 April and 20 May 2015 Date of orders: 23 July 2015 Decision date: 23 July 2015 Jurisdiction: Class 1 Before: Tuor C Decision: See paragraph 55 Catchwords: DEVELOPMENT APPLICATION – residential flat building. Non-compliance with height standard, adequacy of setback, amenity, solar access and landscaping. Impact on tree in public reserve. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development Burwood Local Environmental Plan 2012 Cases Cited: Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Category: Principal judgment Parties: Charbel Tannous (Applicant) Burwood Council (Respondent) Sydney Trains (Intervener) Representation: Counsel: Ms J McElvey (Intervener) Solicitors: Mr A Gough of Storey & Gough Lawyers (Applicant) Mr A Seton of Marsdens Law Group (Respondent) Mr White of Henry Davis York (Intervener) File Number(s): 10936 of 2014 Judgment 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a development application (53/2014) by Burwood Council (council) to demolish the existing structures and construct a residential flat building (RFB) with basement parking at 22-24 Grosvenor Street, Croydon (site). Site and locality 1. The site is located on the southern side of Grosvenor Street, at the corner of Webb Street and Albert Crescent. It comprises Lots A and B in DP 962183, which are irregular in shape with a combined street frontage of 44m and an overall area of 1,024sqm. Each lot is developed with a single storey detached dwelling. The rear southern boundary of the site adjoins the railway line and part of the western boundary adjoins a reserve which contains a large Camphor Laurel in its south east corner. Adjoining development to the east is a RFB (18-20 Grosvenor Street). Opposite the site are residential flat buildings (19 and 21 Grosvenor Street) and a single storey dwelling (73 Webb Street). 2. Development in Grosvenor Street is predominantly recent RFBs and development along the northern side of Albert Crescent and along the western side of Webb Street is predominantly detached dwellings. 3. Croydon Station, Neighbourhood Centre and Public School and PLC Sydney are near the site. Proposal 1. The development application, as amended, seeks consent to demolish the existing structures and construct an eight storey RFB above two levels of basement parking. The development includes 40 apartments (5x1 bedroom, 32x2 bedroom and 3 studio) and 48 parking spaces. Statutory framework 1. The site is zoned R1-General Residential under the Burwood Local Environmental Plan 2012 (LEP) and the development is permissible with consent. The objectives of the zone, which under cl 2.3(2) the consent authority must have regard to, are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The adjoining reserve is zoned RE1-Public Recreation, the railway line is zoned SP2-Infrastructure (Railway) and the land to the north of Albert Crescent and to the west of Webb Street is zoned R2-Low Density Residential. 2. Clause 4.3 of the LEP permits a maximum height of 26m. The building is below the height limit with the exception of the lift motor room that provides access to the roof top communal area, which exceeds the height limit by a maximum of about 1300mm. The applicant has submitted a written request under cl 4.6 of the LEP that seeks to justify this contravention of the height standard. The maximum permissible floor space ratio (FSR) under cl 4.4 of the LEP is 3:1. The development proposes a FSR of 2.12:1. 3. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the development. Clause 30 requires consideration of the design quality when evaluated in accordance with the design quality principles in Part 2 (cl 30(2)(b)), and the Residential Flat Design Code (RFDC) (cl 30(2)(c)). 4. Under cl 86 of State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) the concurrence of Sydney Trains is required. It granted concurrence subject to the imposition of conditions. Under s 64(1) of the Land and Environment Court Act 1979 (LEC Act), Sydney Trains appeared as the Crown in the proceedings. Sydney Trains raised no objection to the application being approved, provided its conditions were imposed. These have been agreed to by the parties and have been included in the draft conditions of consent. Clause 87 of the Infrastructure SEPP applies to certain non-rail development on land adjacent to a rail corridor that is likely to be adversely affected by rail noise or vibration. It requires that: If the development is for the purposes of a building for residential use, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded: (a) in any bedroom in the building—35 dB(A) at any time between 10.00 pm and 7.00 am, (b) anywhere else in the building (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time. 1. Burwood Development Control Plan 2013 (DCP 2013) relevantly includes provisions for Residential flat buildings in R1 zone (Part 4.1), including Setbacks (cl 4.1.2.1), Communal Open Space, Landscaping and Solar Access and Ventilation (cl 4.1.2.3). Evidence 1. The hearing commenced on site on 7 April 2015 and the Court heard evidence from residents objecting to the proposed development. The main concerns of the objectors were that the height, bulk and density of the proposal were inconsistent with the character of the area and an overdevelopment of the site. In particular, the proposal would be larger than other recent RFBs and would result in unacceptable impacts on residential amenity, including visual bulk, privacy and loss of sun light. The objectors were also concerned about the impact of increased traffic and demand for on street parking. They stated that Grosvenor Street is narrow and the intersection with Albert Crescent and Webb Street is dangerous, which will be exacerbated by the development. They were also concerned about the cumulative impacts of this and other development in the area, particularly during construction. 2. The hearing was adjourned until 20 May 2015 for final submissions. During this period, the applicant prepared amended plans to further address the contentions in the proceedings, particularly solar access and amenity of the units (Amended Plans). The Amended Plans were renotified and further submissions were received which reiterated the concerns of the objectors. The applicant sought and was granted leave to rely on the Amended Plans (Exhibit H) subject to a costs order under s97B of the EPA Act. 3. The Court heard expert planning evidence from Ms S Francis, for the applicant and Mr G Turrisi, for the council. Mr S King, for the applicant, provided evidence on amenity issues including solar access and cross ventilation. Mr A Swain, arborist, provided evidence on the impacts of the proposal on the Camphor Laurel in the adjoining Reserve, however, he was not required for cross examination. 4. As a result of the amendments to the plans, the contentions and issues between the experts have generally been resolved. Although, Mr Turrisi maintained his opinion that the development would achieve better amenity if it were designed to provide cross over units with bedrooms orientated to the south and living areas to the north. He recognised that this would reduce the yield of the development and that the current application achieved an acceptable level of amenity. Mr Turrisi also maintained residual concerns about setbacks and landscaped area, although he did not maintain that individually these would be a reason to refuse the application. 5. Despite the general agreement of the experts, Mr Seton, for the council, submits that the application should be refused and that the contentions raised by council have not been adequately addressed. The key differences between the parties are discussed below. Contention 1 – Height 1. The lift overrun of the development exceeds the height standard in cl 4.3 of the LEP by up to 1.3m. The planning experts agreed that the cl 4.6 Request dated February 2015 is well founded and consequently that strict compliance with the development standard was unreasonable and unnecessary. A further cl 4.6 Request dated April 2015 was submitted to address an incorrect ground floor level in the plans. Mr Seton submits that the cl 4.6 Request has not demonstrated that there are circumstances or environmental planning grounds, such as the topography of the site, which would demonstrate that compliance with the standard is unreasonable or unnecessary and that an eight storey building should be able to be accommodated within the height limit. 2. Mr Turrisi and Mr King considered Mr Seton's submission and agreed, in oral evidence, that due to the slope of the land and the location of the access ramp to the basement, the building could not be lowered whilst still maintaining the development as eight storeys, which is envisaged by the height standard. The experts agreed that strict compliance with the standard is unreasonable and unnecessary and that there are sufficient environmental planning grounds to justify the contravention. A further amended clause 4.6 request was filed on 28 May 2015 to incorporate the evidence of Mr Turrisi and Mr King. 3. Mr Gough, for the applicant, submits that strict compliance with the height standard in cl 4.3 is unreasonable and unnecessary and that the cl 4.6 Request is well founded as it: a) Successfully demonstrates that compliance with the height standard is unreasonable or unnecessary by providing an assessment of the development against the tests devised by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 at [44] to [48]; Cl.4.6(3)(a) b) Nominates 6 environmental planning grounds that justify the proposed contravention of the height standard: cl4.6(3)(b) c) Successfully demonstrates that the development is in the public interest as it is consistent with the objectives of the height standard and the objectives of the R1 General Residential zone: cl4.6(4)(a)(ii). …. no allegation has been made by the respondent that the proposed development offends a zone objective and no evidence has been received that the proposed height offends the objectives of clause 4.3 of LEP 2012. d) Addresses the matters relevant to the Director-General's decision to grant concurrence: cl4.6(4)(b) & cl4.6(5) Contention 2 - Inadequate setbacks and building separation to east 1. The setback from the eastern boundary of the fourth, seventh and eighth levels do not comply with the numerical setback requirement of P3 of cl 4.1.2.1 of the DCP and the separation requirement of the RFDC. The remaining levels are either in excess of the numerical requirement or compliant. 2. The planners agree that the non-compliances do not result in overshadowing or privacy concerns for the adjoining development at 16-20 Grosvenor Street and that the amenity of occupants of 16-20 Grosvenor Street would be acceptable. Under cross examination, Mr Turrisi agreed that the non-compliance with building separation and setback would not result in a building that was unacceptable in terms of its built form, height and scale or its compatibility with the streetscape and desired future character. 3. It was agreed by Mr Turrisi that the development complies with the objectives of the setback control contained in cl 4.1.2.1 of the DCP and the objectives of the separation control contained in the RFDC. 4. The amenity of the south east units on each level has been addressed in the Amended Plans by providing living areas with eastern, western and southern orientation for levels 1 to 7 and east facing windows for the ground level unit. Contention 3 - Inadequate landscaping, deep soil planting and communal open space Communal Open Space 1. P5 of cl 4.1.2.3 of the DCP requires a communal open space area of 256sqm having a minimum dimension of 6m and 50% of that area (or 128sqm) to be unpaved and soft landscaping. 2. The proposed development provides communal open space at the rooftop level (225sqm) and within the eastern side setback (173.3sqm). The combined areas of communal open space have a total area of 414.8sqm and a total soft unpaved landscape area of 121.1sqm. 3. The amount of soft landscaping in the communal areas is 6.9sqm less than the requirement. However, the experts agreed in cross examination that the development provides adequate area for occupants to enjoy passive and active recreation. The Amended Plans address the casual surveillance of the communal open space area at ground level through the provision of windows on the ground and first floor. Although, I note Mr Seton's submission that the landscape plan would need to be amended to ensure that the height of the plants adjacent to the windows do not prevent casual surveillance. A condition to this effect should be included in the consent. Deep Soil Zone 1. P10 of cl 4.1.2.3 of the DCP requires a minimum of 10% of the site area (102.4sqm) to be deep soil and have a minimum dimension of 4m. The development provides an area of deep soil of 120.4sqm, which equates to 11.25% of the total site area. However, only 79sqm (7.71%) of this area has a minimum dimension of 4m. 2. Mr Seton submits that this is related to the reduced setbacks and results in less amenity and less area for tree planting. Mr Gough submits that the deep soil dimension results from the irregular shape of the site and that while some deep soil areas do not achieve 4m in one direction they exceed this width in other directions and are of sufficient size and dimension to accommodate large trees and landscaping. The areas are also partially contiguous with the reserve to the west and are therefore of greater dimension. Landscaped area 1. P11 of cl 4.1.2.3 of the DCP "expects" 25% to 30% of the site to be landscaped area (256sqm to 307sqm). 2. Mr Turrisi was of the view that only 229sqm or 22% of the site is landscaped area. Whereas, Ms Francis' evidence is that 293sqm or 28% of the site is landscaped area. This difference of opinion centred on whether the planter box provided sufficient soil depth for plants. The amended landscape plan indicates soil depths of 700mm for planter boxes above the basement level, and provides for a range of low and tall shrubs having a mature height of between 1.5 metres to 4 metres. This soil depth is consistent with the RDFC for Planting on Structures. 3. The parties agreed that the landscape setting could be improved by replacing the hard surface of the garbage area next to driveway with grasscrete and reducing the hard paving/increasing the planter box of the courtyard adjoining Unit G.03. Contention 4 - Inadequate sunlight to proposed units and to adjoining properties 1. In Mr King's opinion, the number of apartments within the adjoining development at 16-20 Grosvenor Street with complying solar access will not change as a result of the proposed development. Mr Turrisi accepted that the overshadowing of the adjoining development would be acceptable. The experts also agree that the solar access to the communal open space at the roof top level would comply with P9 of cI 4.1.2.3 of the DCP. 2. The experts raised concerns about solar access to the units if the impact of the Camphor Laurel was considered. The Amended Plans relocate the living areas and balconies of Units 105 to 705 away from the Camphor Laurel and thereby increase solar access to these units from the north and west. The Amended Plans also increase solar access to Units 104 to 704 by orientating living areas towards the east and west. The proposal therefore complies with the requirements for solar access in the RFDC and the DCP. Contention 5 - Inadequate setbacks to west (reserve) and south (railway line). Setback to south (railway line) 1. The development provides setbacks of 834mm up to 3.6m to its rear boundary with the railway line, which do not comply with the requirements of P3 of cl 4.1.2.1 of the DCP. Mr Turrisi's concerns about the amenity of the units that face the railway line have largely been addresses by the Amended Plans. As discussed above, he considered that better amenity and greater setback would be achieved by cross over units. Setback to West (Reserve) 1. Council contends that the non-compliant side setback of the development to the Reserve would have an adverse impact on the Camphor Laurel. However, council did not provide any expert evidence to support this contention. This is discussed further under Contention 7. Contention 6 - Overdevelopment; Bulk and Scale 1. The experts have reached agreement that the height of the development is acceptable. It was agreed by Mr Turrisi in cross-examination that the bulk, scale and streetscape impact of the development were also acceptable. Contention 7 - Impact on Camphor Laurel 1. Mr Swain accepted that the proposed construction encroaches within the tree protection zone (TPZ) by 31.8%, which is considered to be a major encroachment as defined by AS4970-2009 for the Protection of Trees on Development Sites. The development would also require about 25% of the crown to be removed. In Mr Swain's opinion, the Camphor Laurel is in good health and condition and is a species known to tolerate significant development impacts, specifically root loss. He considered the Camphor Laurel could be retained if construction methods are used to minimise impacts on the root mass and crown. 2. The planning experts accepted the evidence of Mr Swain that it was feasible to retain the Camphor Laurel but considered the lopping of the tree to be severe and that it may be more appropriate to remove the tree and replace it with an alternative species. Although, they recognised that the tree is in council land and is required to be retained by council as it is a mature tree, which provides considerable benefits. They noted that the ground floor of the development is setback from the root zone but that the upper levels of the development encroach further into the canopy and reduce the solar access. As discussed above, the internal re-arrangement of Units 105 to 705 proposed in the Amended Plans has increased the solar access to an acceptable level to these units. In response to questions from the Court, Mr King and Mr Turrisi accepted that the upper levels (Levels 1-7) could be setback to correspond to the ground level setback and consequently provide greater separation from the Camphor Laurel and that the units could be redesigned to maintain the number of bedrooms. Mr Gough indicated that the applicant would accept a requirement that the development be setback from the tree, if required by the Court. Contention 8 - Amenity 1. Council raised a number of matters relating to the amenity of future residents of the development, including the acoustic treatment required due to the development's proximity to the railway line and the cross ventilation of the units. 2. The acoustic report prepared for the development application recommends noise attenuation measures to comply with the relevant criteria in cl.87(2) of the Infrastructure SEPP and the Department of Planning's "Development Near Rail Corridors and Busy Roads - Interim Guidelines" (Guidelines). The conditions incorporate the recommendations of the acoustic report. 3. The Guidelines provide: If internal noise levels with windows and doors open exceed the criteria by more than 10dBA, the design of the ventilation for these rooms should be such that occupants can leave windows closed, if they so desire, and also to meet the ventilation requirements of the Building Code of Australia. 1. The units within the development will exceed the noise criteria by more than 10dBA when windows and doors are open and therefore mechanical ventilation is required by the Guidelines and is included as a condition of consent. Mr Turrisi was concerned that it should be demonstrated that mechanical ventilation could be provided without changes to the floor to floor heights or overall height of the building. The ventilation system has been integrated into the Amended Plans and achieves acceptable ventilation. 2. The experts agree that the other amenity issues have been resolved through Amended Plans or proposed conditions. Contention 9 - Insufficient Information 1. The experts agree that sufficient information has either been provided or can be satisfied by conditions of consent. Contention 10 - Public Interest 1. Mr Turrisi raised matters relating to internal amenity, tree retention and landscape quality as matters of public interest. These matters are discussed above. Findings 1. The contentions have been largely resolved through the Amended plans, proposed conditions and the evidence of the experts. 2. I accept the evidence of the experts that the cl 4.6 Request is well founded and that the matters required under cl 4.6(4) have been satisfied. The proposal complies with the requirements of SEPP Infrastructure and provides acceptable cross ventilation. With the Amended Plans the proposal now complies with the requirements for solar access and amenity in the DCP and RFDC. The setback of the proposal from the eastern boundary and the communal open space achieve the objectives of the control and flexibility must be applied in requiring strict compliance with the development standards pursuant to s 79C(3A)(b) of the Act. 3. The other matters raised by the residents relate mainly to the form of development that is permissible under the planning controls, which is more appropriately addressed through the strategic planning process rather than in response to an individual development application. Issues such as traffic, safety and parking were not raised by council and, in the absence of expert evidence to the contrary, would not be reason to refuse the application. Similarly, while Mr Turrisi's opinion that better amenity would be achieved by cross over units may be correct, this would require a redesign of the development and reduce the number of units, which would not be reasonable given that the level of amenity of the proposal is agreed to be acceptable and the development is consistent with what is envisaged under the planning controls. 4. There remain residual issues of setback to the southern and western boundary, deep soil area and impact on the Camphor Laurel, which individually would not be a reason to refuse the application, but cumulatively are matters which still need to be addressed before consent can be granted. These matters are interlinked as the setback of the south western corner of the building (levels 1-7) is less than one metre from the southern and eastern boundaries and encroaches significantly into the canopy of the Camphor Laurel. In the absence of any evidence to the contrary, I accept the evidence of Mr Swain that the tree will survive, however, its appearance and the amenity it provides will be reduced. Furthermore, the amenity of the units which are in close proximity to the tree will also be reduced. I do not accept that it is reasonable for the proposal to encroach to the extent proposed given that this results from non-complying setbacks and deep soil dimensions and that it encroaches into a mature tree within a public reserve that provides amenity to the area. 5. An increased setback to the Reserve would also be appropriate as this forms the transition between the R1-General Residential Zone and the RE1-Public Recreation and R2-Low Density Residential Zones (see Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117). 6. For the above reasons, I find that the application can be approved subject to the upper levels of the proposal (Levels 1-7) being setback to correspond with the setback of the ground level. This will require redesign of these units (Units 105-705 and Units 101 to 701) but the number of bedrooms should be able to be retained. 7. While these changes could be dealt with by conditions, it is preferable and provides greater certainty if the amendments are incorporated into final plans. 8. The other changes agreed during the hearing should also be incorporated into amended plans and conditions. These include: limiting the height of the trees in the planter boxes in the communal area to ensure passive surveillance; replacing the hard surface of the garbage area next to driveway with grasscrete and reducing the hard paving/increasing the planter box of the courtyard adjoining Unit G.03. 9. In these circumstances, it is appropriate that Directions be issued to finalise the plans and conditions. Final orders will be issued in Chambers that uphold the appeal once the amended plans and conditions, which reflect this decision are finalised. Directions 1. The Court makes the following Directions: 1. The applicant is to serve amended plans by 6 August 2015. 2. The council is to serve amended conditions by 13 August 2015. 3. The parties are to file agreed plans and conditions by 20 August 2015. 4. Liberty to restore on two days notice. Annelise Tuor 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: 04 November 2015