Land and Environment Court New South Wales Medium Neutral Citation: Environa Studio Pty Limited v The Hills Shire Council [2015] NSWLEC 1515 Hearing dates: 12 October & 7 December 2015 Date of orders: 10 December 2015 Decision date: 10 December 2015 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: contentions addressed through amended plans; whether development is in the public interest having regard to objections received Legislation Cited: Environmental Planning and Assessment Act 1979; The Hills Local Environmental Plan 2012; State Environmental Planning Policy Nos 55 - Remediation of Land; State Environmental Planning Policy No 65-Design Quality of Residential Flat Buildings; State Environmental Planning Policy (Building Sustainability Index: BASIX) Texts Cited: The Hills Development Control Plan 2012; Residential Flat Design Code; Apartment Design Code Category: Principal judgment Parties: Environa Studio Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: Mr M Staunton (Applicant) Solicitors: Ms S Ozbell Gadens (Applicant) Mr S Kondilios Hill & Wilcox Lawyers (Respondent) File Number(s): 10534 of 2015 Judgment 1. Environa Studio Pty Limited lodged Development Application No 1231/2015HB on April 2 2015 seeking consent from the Hills Shire Council for demolition of an existing service station and the erection of a three-storey shop top housing development with a basement carpark. The council had not determined the application within the prescribed period and Environa is appealing its deemed refusal. 2. The main issue in the case was whether the development satisfies the definition of shop top housing and the planning controls that apply to the site. 3. Following the joint conferencing between the planning and urban design experts, the applicant prepared further amended plans and sought leave to rely on those plans. Due to the nature of changes made, the council, whilst not opposing leave, required renotification of those plans. The hearing was adjourned to allow this to occur and that notification took place from 14-28 October 2015. 4. Leave was granted to the applicant to rely on those amended plans, the Revision G plans (Exhibit D) subject to payment of the council's costs thrown away up to and including 12 October 2015 as agreed or assessed pursuant to the provisions of Section 97B of the Environmental Planning and Assessment Act 1979 (EP&AAct). 5. Further modification was made to the plans, in particular the carparking layout and leave was granted on 7 December 2015 to the applicant to rely on those plans. The plans and associated BASIX certificate, Exhibit G are the plans before the Court. No further costs were sought or ordered. 6. As a result of the changes made, the council no longer presses any of the contentions in the case other than the public interest, in particular the matters raised by objectors. Those issues are detailed in the Amended Statement of Facts and Contentions filed with the Court on 6 November 2015, Exhibit 8 in these proceedings and detailed at [23]. The site and its context 1. The site is described as Lot 370 DP 238858 and is known as 40 Merindah Road, Baulkham Hills. It is an irregular shaped lot with a 53.34m frontage to Merindah Road, splay corners to both Mura Lane and Glanmire Road, a 28.09m frontage to Mura Lane, a 26.22 m frontage to Glanmire Road and a rear boundary of 64.410 m to the east. Site area is 1910 m². 2. A single-storey building and awning exist on the site which was previously used as a petrol station and mechanical workshop. Two driveway crossings currently provide vehicular access to the site from Merindah Road. A bus stop is located adjacent to the site between those crossings. 3. The existing character opposite the site is characterised by low density residential development primarily one and two story residential dwelling to its north, west and south. This changes to the east of the site which contains an existing single-storey neighbourhood shopping centre and public car park fronting Glanmire Road. 4. The neighbourhood shopping centre comprises seven lots and includes businesses such as a hairdressing salon, chemist, bakery, supermarket, liquor store and newsagent. The site to the south, at 42 Merindah Road, is a single storey dwelling that has been converted for use by a medical practitioner (dentist). To the north of the site, at 38 Merindah Road, a single storey dwelling is currently used by a medical practitioner (dentist). A large public reserve is located further to the east of the site with a smaller reserve immediately adjoining the neighbourhood centre to its east. Background and the proposal 1. The proposal involves demolition of the service station buildings and associated hard stand areas, the remediation of the site in accordance with a remediation action plan to be approved by the Council in the event consent is granted, and the construction of a two and three-storey building above two basement levels of car parking. 2. The development is proposed to include two ground floor retail areas fronting Merindah Road that are separated by an entry foyer which provides access to 2 storeys of residential flats above. A third retail space would be constructed in the north eastern corner of the site fronting Glanmire Road and the existing council carpark that is adjacent to the adjoining neighbourhood centre. 3. Vehicular access to the site would be from a driveway in the south eastern corner of the site off Mura Lane. That driveway would provide security access to the lower basement level which provides 30 car spaces for residents and visitors of the units. The upper car parking level, which would be secured outside business hours, provides retail and visitor parking with a total of 24 spaces provided of which one would double as a loading zone provided at the southern end. 4. Garbage storage areas and service areas are also located at this level. The two levels of residential apartments would comprise three x studio, four x 1 bedroom, two x 1 bedroom plus study and seven x 2 bedroom units, a total of 16 units. A central landscaped outdoor seating area would be provided adjacent to and to the south of the Glanmire Road retail space and the eastern boundary of the site. It has an area of 121m². All units incorporate balcony areas for private open space. 5. A 6m landscaped and paved setback would be provided along the ground level retail space fronting Merindah Road. An awning would encroach that setback across the retail area. The first floor apartments would also be erected on that 6m setback with a 9m setback provided to the main external wall of the second floor apartments, with the balconies of those units setback 7m. 6. A landscaped setback varying from a minimum of 6m would be provided to Mura Lane and Glanmire Road with stairs and stepped garden beds linking the two levels of retail space and also providing pedestrian linkages between the site and the existing neighbourhood shopping centre and the council carpark. The planning controls 1. The site is zoned B1 Neighbourhood Centre under the provisions of The Hills Local Environmental Plan 2012 (LEP). Demolition and development for the purpose of shop top housing is permissible with consent in the B1 zone. Shop top housing is defined in the dictionary to be LEP as one or more dwellings located above ground floor retail premises or business premises. 2. It is common ground that the amended plans now meet the definition of shop top housing and the development is permissible in the zone. 3. Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 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 ensure the scale and type of development is compatible with the character and amenity of a neighbourhood centre. • To allow for residential development that contributes to the economic and social vitality of the neighbourhood centre and does not detract from the primary objective of the zone. • To promote commercial activities in locations that encourage walking and cycling to and from the neighbourhood centre. 1. Part 4 of the LEP contains Principal Development Standards with clauses 4.3 - Height of buildings and 4.4 -Floor space ratio (FSR) relevant to the application. In accordance with the LEP map, the site has a maximum building height of 9 m and a maximum floor space ratio of 1:1. The amended plans indicate compliance with both development standards. The development has a FSR of 0.904:1. 2. The Hills Development Control Plan 2012 (DCP) applies to the site and Part B Section 6, Clause 2.6 - Building Height provides for a maximum height of buildings on the land as two storeys. The proposal does not comply with that control. Other relevant provisions are contained in Part B Sections 5 - Residential Flat Buildings; Part 6 - Business and Part C Section 1 - Parking. 3. The provisions of State Environmental Planning Policies Nos 55 - Remediation of Land (SEPP55); 65-Design Quality of Residential Flat Buildings (SEPP65) and the associated Residential Flat Design Code (RFDC) and State Environmental Planning Policy (Building Sustainability Index: BASIX) are the relevant planning instruments. The issues 1. As stated above, the contentions in the case, other than the public interest, have been resolved through the amended plans. The particulars that relate to public interest are those issues raised by objectors to the application. The council received three written objections to the amended plans. This is in contrast to the 199 objections it received in response to the original plans. The particulars in the case are: * Exceeds maximum building height and number of storeys; * Increase in number of shops; * Same number of apartments; * Insufficient parking provision; * Not a family orientated complex and looks more like a student accommodation; * Use of narrow corridors reduced floor space to adjoining studio apartments; * 1 bedroom units are non-compliant with SEPP 65; * Out of keeping with the residential nature of the area; * Excessive use of land for financial gain; * Details of floor plans and usage of retail areas not provided; * Contradicting consultant reports; * Deliveries not addressed; * Retail waste management not addressed; * Failure to satisfy the objectives of the B1 Zone in terms of compatibility with the character and amenity of a neighbourhood centre. The proposed 3 storey building is considered to be out of character with the adjoining single storey neighbourhood shopping centre and the predominantly single and two storey dwellings adjoining and surrounding the site; * Unjustified variation to council's parking rates. Since the adoption by council of the parking DCP on 24 August 2004, the car parking rate for this type of development has been consistently applied across the local government area. The evidence 1. A site view was undertaken on the first day of the hearing with objections heard from a number of residents at that time. The issues raised are consistent with those that remain contentions in the case. One of the persons who lodged a written objection to the council in relation to the amended plans provided evidence in Court on the second hearing day. He had also authored a petition that opposed the proposal on the basis that it is not suited to the site and the Crestwood area. That petition, Exhibit 9, contains over 100 signatures. His objections relate to the non-compliance with the DCP storey control; overshadowing/overlooking; inappropriate waste collection location; adverse impacts from future retail uses, in particular noise, lighting, signage; excessive size, not a family orientated design; inadequate parking and privacy concerns. 2. Expert evidence was provided by Ms A Sutherland (town planning), Mr R Dickson (urban design) and Mr A Morse (traffic and parking) for the applicant and Ms G Morrish (urban design) for the council in the form of written reports. Ms Sutherland, Mr Dickson and Mr Morse provided aural evidence on the second day of the hearing. Ms Morrish was not required for cross examination. 3. The planning and urban design experts, in their Amended Supplementary Joint Report, Exhibit E, agree that the amended plans satisfactorily address the appropriateness of a three storey form on Merindah Road, amenity concerns, the relationship with the likely future character of the neighbourhood centre and integration with that centre, width of entries, provision of communal open space and solar access. They conclude the plans satisfy those design contentions that were originally raised by the council. 4. In relation to the issues raised by objectors to the proposal, the Joint Report filed with the Court on 17 November, Exhibit F addresses those issues. 5. In regard to building height they agree that the proposal is compliant with the LEP development standard for building height and is not compliant with the DCP control for number of storeys. They consider however that the proposal does comply with the height overall and a setback has been provided to Merindah Road to ensure a 2 storey streetwall height. 6. They agree the massing meets the objectives of the storey control, the height of the building and the number of storeys relates appropriately to the context and to future development of the remaining portion of the B1 zone, that the two storey scale to Merindah Road relates to the scale of adjacent dwelling houses which are 2 storey plus roof form and that the overall height of the proposal is similar to the sort of height that might be achieved by a 2 storey building plus a pitched roof form. They agree that the proposal is a reasonable alternative proposal to the 2 storey form plus roof and that it is compatible with the character of the area and compliant with the FSR development standard. 7. The experts note the zoning of the site is Neighbourhood Centre B1 and that the primary objective is to provide facilities and services to the local community including retail shops. They agree that the provision of additional retail shops, particularly to Glanmire Road and adjacent to the council public car park is a positive benefit and improves the proposal. For this reason they consider the number of shops proposed is appropriate. 8. Similarly, in terms of dwellings, they note the proposal is consistent with the FSR control and that the size of the units has been reduced to better suit issues of affordability and amenity. They agree that a range of unit types and sizes are provided which will cater to a diverse population and that this is appropriate for a B1 zone. The proposal, not being a boarding house or student housing but rather shop top housing, is a use contemplated in the B1 zone and they consider the architecture of the scheme is contemporary and appropriate. 9. The studio apartments are 60sqm which provides a very generous apartment with high amenity and good internal space. They do not consider that the corridors compromise the apartment design. Further, the one bedroom units satisfy the RFDC Rules of Thumb for unit areas. 10. The fitout and use of the retail space will be subject to separate Development Applications and a condition of consent, condition 26 has been imposed to reflect that requirement. They were unaware of any contradictions between consultant's reports, other than the reports have not been updated to reflect the current plans. The experts agree that commercial waste would be collected by contractor and that garbage storage areas have been provided for each retail tenancy, that deliveries for retail units will occur from the loading zone within the development, the street or public car parking area which they say is appropriate given the size of retail proposed. 11. Mr Morse provided evidence in relation to the carparking and says that in the circumstances of the case, the deficiency of one space is not a reason to refuse consent. He had conducted a survey of the adjacent council public carpark. That carpark, whilst it adjoins the businesses that operate within the existing neighbourhood centre, is not for the exclusive use of that centre. It contains provision for 38 cars. In addition, onstreet parking in the vicinity of the site totals a further 38 spaces. The peak occupancy of the carpark during the survey period occurred on Thursday afternoon and Saturday midday with 57.9% of the spaces occupied. 12. Mr Morse also assessed the parking demand of the existing centre and compares that to the proposed development on the basis that it is likely to generate similar parking demands. On the basis of GLFA, the parking demand of the existing neighbourhood centre would be 1 space per 22sqm and on peak occupancy, the rate would be 1 space per 37sqm. Under both scenarios he says the DCP does not represent a true reflection of parking demand for the site. He concludes that in the vicinity of the site there is adequate capacity to cater for the one parking space shortfall if the DCP provision is applied. 13. Mr Morse has also considered the proposed waste management collection and says that Mura Lane is of sufficient width to allow a vehicle to collect bins and other vehicles to pass in the current one-way flow within that lane and the proposal would be consistent with common practice for developments of this size. 14. The council did not contest any of the traffic evidence. Conclusion and findings 1. Having regard to the evidence, I am satisfied that the objectives of the B1 zone are met. The proposal would 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. It would also allow for residential development that contributes to the economic and social vitality of the neighbourhood centre and does not detract from the primary objective of the zone and promote commercial activities in locations that encourage walking and cycling to and from the neighbourhood centre. 2. I also accept the agreed position of the planning and urban design experts that the building height development standard is met and that, in the circumstances of the case, it is appropriate to vary the storey control in the DCP. That is because, having regard to the provisions of s79C(3A)(b) of the EP&AAct it is appropriate to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development. 3. The objectives of the building height control in the DCP are to ensure that building heights respond to the existing landform of the neighbourhood, including ridgelines and drainage depressions; to protect privacy and amenity of surrounding allotments and residential development and to minimise overshadowing of adjoining allotments. 4. The site, at the Merindah Road frontage is some 3m below the existing carpark, this difference reflecting one storey. For that reason, it is likely that any further development of the adjoining neighbourhood centre would result in additional building height and that additional height would be consistent and compatible with the proposed development. The third storey is setback from the streetwall and accordingly, its impact is reduced. There is, according to the evidence, at least 36m separation between the proposed balconies of the units and the dwellings on the opposite side of Merindah Road. That distance is well in excess of the recommended separation distance in the Apartment Design Code (ADC) of 12m between habitable rooms/balconies for buildings up to four storeys. Accordingly, I am satisfied the development will not adversely affect the amenity or privacy of nearby residents. Similarly, the only overshadowing impacts are to roads and not dwelling houses. 5. The site is zoned as a Neighbourhood Centre and accordingly, like the existing adjacent shopping area, it will not look like detached housing. The proposed building is compatible with the character of the area, satisfies the LEP development standards for building height and FSR and the objectives of the DCP control for building height. It does not seek to provide any additional floor space from that contemplated under the council's planning controls and is in fact below the maximum FSR permitted. 6. A Design Verification Statement has been provided by the applicant (Exhibit N) and having regard to the evidence, I am satisfied the development meets the relevant requirements of SEPP65 and the ADC. 7. The ADC specifies a minimum floor area of 35sqm for studios so the proposed studios, with a minimum area of 60sqm, are well in excess of that. I agree with the experts that the design of those studios is acceptable, particularly given the floor space provided. Similarly, the one bedroom units exceed the 50sqm minimum under the ADC by at least 14sqm. 8. I accept the uncontradicted evidence of Mr Morse that the parking provided and waste management proposals are adequate. 9. The carparking calculations have been based on worst case scenario, that is all of the spaces being used for retail uses. Whilst not discussed during the hearing, and the future use of the ground floor tenancies does nor form part of the application, it is possible that one or more of those spaces could be used for business purposes. The Court notes that the parking rate for such use is 1 space per 25sqm of Gross Leasable Floor Area (GLFA), being less than the 1 per 18.5sqm GLFA for retail spaces. In the event that the smallest retail unit was used as business premises, four spaces would be required in lieu of the 5 that would be required if it was retail area. Accordingly, there would be no deficiency. There would be surplus spaces should more than one of the tenancies be used for business purposes. Even if the uses of these tenancies were to be all retail, I am satisfied that adequate parking is available. 10. There is no requirement for the development to be "family oriented". I note that the residential area that adjoins the site is dominated by single detached dwelling houses and consider that the provision of a mix of housing types as proposed is a positive aspect of the development. The units may be attractive to persons who live in the area who are looking to remain but downsize or also be occupied by young persons who live in the area and are unable to afford a freestanding house. For this reason, I consider the style and size of housing proposed to be appropriate. 11. For the reasons outlined above, there is no reason why consent should not be granted. 12. The Orders of the Court are: 1. The appeal is upheld. 2. Development Application No 1213/2015HB for demolition of an existing service station and the erection of a three-storey shop top housing development with a basement carpark at Lot 370 DP 238858, No. 40 Merindah Road, Baulkham Hills is approved subject to the conditions of consent in Annexure A. 3. The exhibits, other that exhibits G, H and 8, are returned. _____________________ Sue Morris Commissioner of the Court 10534 of 2015 Morris (C) (325 KB, pdf) ********** Amendments 08 September 2017 - Pursuant to UCPR 36.17, the slip rule, amend Order 2 to read "Development Application No. 1213/2015/HB" 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: 08 September 2017