Land and Environment Court New South Wales Medium Neutral Citation: George Antiniou v Bayside Council [2017] NSWLEC 1464 Hearing dates: 17 August 2017 Date of orders: 29 August 2017 Decision date: 29 August 2017 Jurisdiction: Class 1 Before: Smithson C Decision: 1. The appeal is dismissed; 2. Modification Application DA-2016/426/B to an approved child care centre at 2 Kurnell Street, Brighton-Le-Sands is as approved by the Council on 15 December 2016 but to the extent that it also sought approval for additional storage, that aspect is refused; and 3. The exhibits, except Exhibits A and 4, are returned. Catchwords: DEVELOPMENT APPLICATION – whether sham application; whether substantially the same as approved development; amenity impacts to neighbours; overshadowing; overdevelopment; streetscape impact; alternative options Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rockdale Local Environmental Plan 2011 Texts Cited: Rockdale Development Control Plan 2011 Category: Principal judgment Parties: George Antoniou (Applicant) Bayside Council (Respondent) Representation: Counsel: Mr J Doyle (Applicant) Solicitors: Mr J Cole, HWL Ebsworth Lawyers (Respondent) File Number(s): 2016/386327 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of a modification application by Bayside Council (the Council) to an approved development. The modification comprises the addition of a 'long term storage area' on the third storey of an approved child care centre (the modification application) at 2 Kurnell Street, Brighton-Le-Sands (the site). 2. The key issue associated with the modification application is the impact the proposed addition would have on a neighbour and the streetscape and character of the area. Summary of the appeal 1. In June 2016, orders were made by the Court in accordance with an agreement under s 34 of the Land and Environment Court Act, 1979 entered into between the applicant and the Council. The orders approved the conversion of a vacant two storey dwelling on the site for use as a child care centre (the centre). 2. The centre will accommodate 50 children and 10 staff members and provide onsite car parking. The intensity of the proposed development on the site was contended by the Council to be a significant issue with the original application. 3. The approved centre meets the NSW Government requirements in relation to child care centres. Within the centre, a number of storage areas are provided comprising rooms or lockers at both the ground and first floor levels. Access to an existing rooftop terrace at the third level of the building is to be altered and an existing 12m² enclosed stairwell on this level is to be converted for use as storage by the centre with a new stair access to the third level provided. 4. The application proposes to modify the approval issued under s 96AA of the Act by expanding the previously approved rooftop storeroom by 70m² from 12m² to 82m². 5. The application also proposed to remove one onsite car space for pick up and drop off of children as well as modifications to the signage for the site. 6. The application stated that the storage area would be used by a senior caretaker or senior management staff for storage of furniture and records associated with the child care facility. 7. The Council formed the view that the proposed 'long term storage area' was in fact a bona fide residential dwelling and the application therefore constituted a 'sham application'. There was independent entry to the area, a bathroom, kitchenette, three separate rooms, sliding doors accessing the roof terrace, and a single car space allocated to the storage area. No direct internal access from the ground floor of the child care centre to the storage area was proposed. The Council was concerned that, if used as a dwelling, the space would have insufficient amenity for future occupants and non-compliant wall to ceiling heights. The ability to enforce the use of the area was seen by the Council as problematic. 8. The Council advised that, prior to the lodgement of the modification application, the applicant made enquiries with the Council for approval of a dwelling in the same form and location as the proposed storage space and was advised that any such modification application would not be supported. 9. The modification application was notified and four submissions of objection were received. The objections raised the following: 1. The proposed storage area is a dwelling as it contains a kitchen and bathroom. The storage area could or would be turned into legal or illegal accommodation 2. There is no basis for the amount of storage sought – 82m² was larger than many units in the area 3. The resultant third level would be excessive, a blight on the streetscape and inappropriate as it would overlook units in Kings Road with overshadowing and noise impacts 4. The loss of a parking space would have traffic and parking impacts in Crawford Road 5. The addition of a third level was not a modification but a significant change to the approved development 6. Approval would create an adverse precedent. 1. In December 2016, the modification application was refused on a number of grounds including that the proposed additional height of the third level would be inconsistent with directly adjoining buildings and developments within the street block. It was also considered to be inconsistent with the requirements and objectives of the LEP in terms of height controls and for development in the R3 Medium Density Residential zone, significantly intensifying the height of the development on the site. 2. In summary, the Council considered that the development would be greater in height, bulk and scale than adjoining residential buildings and would be visually prominent given the corner location of the site. It was therefore inconsistent with the existing and future desired character of the area. 3. Further refusal grounds were that the proposed additions were for a pseudo storage area comprising the layout and form of a residential dwelling which was not appropriate given its adverse visual impact upon the streetscape and the visual amenity of the area. Concerns were also raised in terms of the loss of the parking space and the floor to ceiling heights of the proposed addition in terms of compliance with the BCA. 4. The Council also contended that sufficient storage was provided for the centre as part of the original approval and was a consideration in Council supporting the approval. Further, that the application had originally sought three storeys but the negotiated s 34 agreement deleted this storey. The Council would otherwise have not agreed to support the original application. 5. Therefore, it was contended that the additional area would result in a development that was not substantially the same development as had been approved. It would add an entire third level to the approved two storey building and, if used as a dwelling, a new use. 6. Irrespective of the use, the additional development was seen by the Council as an overdevelopment of the site. The site is located in a low density residential zone where development is limited to two storey, albeit there are higher residential flat building (RFB) developments in adjoining zones in Crawford and Kings Roads. It would breach the height and storey controls for the site and intensify the use of the site with adverse consequences for the area and the streetscape. The site was on a visually prominent corner and a three storey flat roofed building would be inconsistent with development in the area and the zone. Rather than improve what was considered to be an anomalous existing flat roofed large dwelling in the street block, the modification was argued by the Council to exacerbate the building's present dominant and uncharacteristic presentation to the two streets which it fronts, being Kurnell Street and Crawford Road. 7. The Council argued that, if additional storage was required, there were alternative design solutions available to provide this which would improve the visual presentation of the development, in particular incorporating a hip pitched roof which would provide a more appropriate contextual fit. 8. Concerns were also expressed as to the impact on the occupants of the adjoining residential dwelling to the west at 4 Kurnell Street in terms of outlook and overshadowing. 9. Finally, the Council raised concern that the floor to ceiling heights were under the minimum 2.4m for non-habitable areas. 10. Prior to the hearing, the applicant removed the proposal for changes to the approved car parking arrangements. Revised plans also confined the overall maximum height to 8.5m. 11. At the hearing, the applicant offered to remove the bathroom and kitchenette components. The areas set aside for this uses were instead to be used for storage. On this basis, the Council did not press the contention that the application was a sham application and accepted that the modification was therefore for substantially the same development as that which had been approved, at least in terms of the proposed use, being storage for the child care centre. The statutory context 1. The site is zoned R3 Medium Density Residential under the Rockdale Local Environmental Plan 2011 (the LEP) and the proposed development is permissible with consent in that zone. The LEP contains objectives for development within the R3 zone. 2. Surrounding and adjoining land to the north, west and south is also zoned R3. Land to the east, on the opposite side of Crawford Road, is zoned R4 High Density Residential. 3. Under the provisions of the LEP, in the R3 zone applicable to the site, the maximum FSR permissible is 0.6:1 and the height, 8.5m. 4. Development is also subject to the provisions of the Rockdale Development Control Plan 2011 (the DCP). Various controls under the DCP apply including a maximum two storey height limit for low and medium density residential development (in Part 5.1). The site and surrounds 1. The site is located on the south western corner of Kurnell Street and Crawford Road. It is relatively flat, rectangular in nature and has an area of 827.7m² with a frontage of 20.1m to Kurnell Street and 41.1m to Crawford Road. 2. The site contains a two storey dwelling approved and built in the 1970's. In the same decade, the pitched roof was replaced with a flat roof and rooftop terrace with enclosed stair access provided to the terrace at the third level. The Council contended the building's size and corner location, along with its flat roof and roof terrace, made it prominent and anomalous in the streetscape (see following image): The site viewed from the corner of Crawford Road and Kurnell Street 1. The locality varies in character. To the west, along Kurnell Street, there are predominantly single storey detached dwellings with more recent development at two storeys including the adjoining house at 4 Kurnell Street and a townhouse development at 12 Kurnell Street. Little other redevelopment of existing housing stock has occurred in this area. Similarly, housing stock in Crawford Road to the north on the western side in the R3 zone is predominately single storey post war residential dwellings with pitched roofs. Immediately opposite the site to the north is a single storey detached dwelling fronting Crawford Road. 2. The adjacent property to the south at the rear is a two storey older style RFB which the Council advised likely enjoys existing use rights as it is otherwise not permissible within the R3 zone. To the east, including to the north east, on the eastern (or opposite) side of Crawford Road are numerous older style RFBs of three to four storeys with predominantly pitched roofs. These are located within the R4 zone. Older style RFBs are also located fronting Kings Road to the south east of Crawford Road. West of Crawford Road, housing stock is generally single storey post war dwellings also predominantly with pitched roofs. There is a former corner shop with a flat roof converted to a dwelling on the corner of Crawford and Kings Road south of the site. Neighbour's concerns 1. At the commencement of the hearing, the Court viewed the site and surrounds and heard from the adjoining neighbour to the west at 4 Kurnell Street, Mr McGarvie. The McGarvies had prepared a written objection to the modification application. 2. In their submission, the McGarvies raised concerns with what they considered to be a major expansion of the existing proposal which appeared to be a residential area on the rooftop. They argued that the area was zoned for two storey buildings and allowing a third storey would set a bad precedent. Further, that there would be adverse impacts on their privacy as, from the north west area of the rooftop, it would be easy to look directly onto their balcony and into their family area and one of their children's bedrooms. 3. Onsite, Mr McGarvie also raised concern with the outlook from their dwelling given the close proximity of the third storey to their upper level living areas. 4. The McGarvies' major concern however, explained onsite, was that the storage area would significantly block out the early morning sunlight into their daughter's bedroom. Whilst overshadowing analysis indicated that the only impact from 9am would be between 9am and 9:30am, their concern was the loss of light before 9am in particular between 7am and 9am in winter and spring when their daughter was preparing for school. They advised that their house was built to a passive solar design by a specialist architect and the proposed storage area would have a detrimental effect on the passive performance of the design and on future solar panel installation. The issues and the expert evidence 1. Whilst noting the amenity concerns of the neighbours, the Council's primary concerns were in relation to streetscape, site context and the resulting undesirable precedent likely to be established. In particular, that the height of the development would be inconsistent with the existing and future desired context and objectives of the R3 zone. 2. The Council contended that the development did not comply with objective iv) of the R3 zone under the LEP, which did not apply to the adjoining R4 zone, and which reads as follows: To ensure that land uses are carried out in a context and setting that minimises any impact on the character and amenity of the area. 1. The Council also contended that the development, whilst complying with the maximum FSR in terms of numeric compliance, did not meet the objectives for the FSR standard at cl 4.4 of the LEP in particular at c) which reads To maintain an appropriate visual relationship between new development and the existing character of areas or locations, that are not undergoing or likely to undergo a substantial transformation. 1. Expert advice was provided to the Court by Ms Prodromou, planner for the Council and Ms Marshall-McClelland, architect for the applicant. Need for additional storage 1. Ms Prodromou considered the additional storage proposed to be an intensification of the use of the site rendering previously approved storage areas redundant. The Council argued that there were no details of the demand or need for the additional storage proposed and that adequate and sufficient storage areas were approved as part of the original approval. 2. It was noted that cots were provided as a permanent fixture within the two cot rooms at ground level for everyday use and that bed stores and generous storage cupboards were provided within close proximity to play rooms and were capable of accommodating standard linen associated with child care centres. Furthermore, an approved office and staff room had sufficient space for long term storage of accounts. The approval also provided a 12m² store room at roof top level. 3. Ms Marshall-McClelland argued that the additional area was required for long term storage of accounts, furniture (including additional cots and beds) and linen which took considerable space. These items could not be stored within the small storage areas approved which were the minimum required to be provided. Further, the division of the storage area into separate rooms was necessary as the walls were required for structural adequacy to allow a single span roof with a low pitch to reduce the overall height of the building. The proposed additional storage area had a minimum ceiling height of 2.1m and there was no requirement for ceiling heights for such uses in the BCA. Neighbour and streetscape impacts 1. Ms Prodromou argued that the approved third level storage area was an existing structure enclosing the staircase and the Council had accepted minor additions at this level to allow new staircase access to the rooftop terrace and conversion of the former space for storage. In contrast the current proposal sought to significantly expand the existing 12m² store room and provide an entire third storey level in the order of 80m². She argued that the negotiated approval for the child care centre was on the basis that the applicant retain a two storey building with only a minor third storey component. 2. Ms Marshall-McClelland argued that the building is already a three storey building on an uncharacteristically large site for the area. This made it different from, but not necessarily incompatible with, the prevailing character of the area. 3. She argued that the proposal is simply to increase the storage area on the third level with no change in use of the building. As the additional area would be used for storage only, there would be no impact on parking and, as no windows would be provided which could overlook adjoining neighbours, no overlooking or privacy impacts beyond that which already occurred from the rooftop terrace. Modelling suggested that there would be no or negligible overshadowing impacts to the western neighbour at 4 Kurnell Street relative to the existing approved development in midwinter even prior to 9am. 4. In this regard, it was agreed that the amenity impacts to this neighbour, in terms of overshadowing and outlook, largely arose from the already approved development not from the proposed modification. 5. The Council contended that the DCP limited residential development in the R3 zone to two storeys. The applicant noted that these DCP provisions specifically apply to residential dwellings not to child care centres. However, Ms Prodromou referenced the DCP at Part 6.1 - Child Care Centres which seeks to ensure development for child care centres in residential zones is integrated appropriately, stating at objective G: To ensure the child care centre integrates with the character of the streetscape and local built form. 1. The Council also contended that the development was inconsistent with Part 6.1.11 Building Design of the DCP which requires the following: Child care centres must be designed in character with the existing streetscape (i.e buildings located in residential areas must maintain an appearance consistent with the nearby residential streetscape). 1. In contrast to this objective, the Council maintained that the proposed third storey storage area would result in adverse visual impacts when viewed from the public domain, being the adjoining streets, would be visually prominent and unsatisfactory in the R3 zone, and was not designed to be consistent with the streetscape. 2. The Council also referenced the written objections from other residents in the vicinity who had raised concerns with the impact of the proposed modification on the character of the area. 3. The Council advised the Court that the size and siting of the existing building on the site did not allow for any landscaping to either street frontage given the existing setbacks to these streets. Therefore there would be no opportunity to screen or soften with landscaping the additional third floor area now proposed. 4. The applicant argued that the development complied with the maximum height permitted by the LEP and was utilising available FSR. The extent of the third level proposed was only one third of the area of the lower levels and one sixth of the total floor area of the approved centre. Further, the roof would be lower than the adjoining roof of the dwelling at 4 Kurnell Street and the materials and finishes of the proposed storage area would be the same as the approved development thus it would appear as a recent element beyond the line of the solid timber clad balustrade. 5. Ms Marshall-McClelland also referenced a number of residential dwellings recently approved by the Council with a third storey including with flat roofs which exceeded 8.5m in height including in the low density residential zones. 6. However, Ms Prodromou claimed the examples provided related to dwellings with rooftop terraces, and the associated access to the rooftops, rather than additions of an entire third floor. Furthermore, the dwellings referenced were not in the locality of the site being in other suburbs where redevelopment was occurring, namely Kyeemagh, Monterey and Sans Souci. 7. The applicant argued that an expanded third storey would provide a transition between the R3 zone and the R4 zone opposite the site on the other side of Crawford Road as encouraged by the DCP control at Part 4.2.2. However, the Council considered that the approved partial third storey was already a sufficient transition between the two zones. 8. The applicant also argued that the proposal responded to the desired future character of the area with redevelopment likely over time given the location of the area, aged housing stock, and the permissible maximum height of 8.5m. The area was not a heritage conservation area and there was nothing preventing new flat roofed compliant development in the street and in the immediate vicinity including through complying development certificates which the Council could not prevent. 9. However, the Council disputed the interpretation of the desired future character of the area portrayed by the applicant, noting that there had been very little redevelopment in the vicinity of the site which suggested that the desired future character of the area was to retain its existing character particularly in Kurnell Street and having regard to the DCP controls which limit residential development to two storeys not to the three storeys sought by the applicant. Alternative designs for the storage area 1. The final contention of the Council was that there were a number of alternative design options which could increase long term storage on the site, if it was required, whilst improving the development's visual presentation. In particular, a hip or pitched roof design utilising the existing roof deck as an eave overhang could house this storage whilst improving the visual presentation of the existing and approved structure having regard to its context. Such a design would address many of the issues raised by the Council, in particular it would provide a more appropriate streetscape and contextual response. 2. The applicant argued that a high pitched hipped roof form could add bulk and scale to the development and potentially increase overshadowing to the western neighbour, albeit modelling of a possible pitched roof design had not indicated this. 3. Furthermore, the building currently existed without a pitched roof and it was therefore already part of the existing streetscape and had been for some time. 4. The applicant also argued that the third storey, when viewed from eye level on the street, would appear recessed and, as the cladding material would be the same as the roof element, it would appear as part of the roof element. However, if required the proposed storage wall along the western boundary could be setback 1.5m to comply with side setback requirements. 5. The applicant was also concerned that, if an alternative pitched roof design was adopted, it would reduce the amount of area available or useable for storage given the sloping wall heights. 6. The experts agreed that the proposed storage area would be recessed from levels below to the north, west and east. However, the Council argued that it would still be located on a prominent corner in an area on the western side of Crawford Road which had an established 1-2 storey context. The Council argued it would therefore be clearly identifiable and visible as a third storey adversely impacting upon the streetscape character within the zone. Findings 1. The main contention of the Council was that the proposed storage area was significant in size and would result in a dominant third storey on an existing visually prominent building in the streetscape in a zone and context where three storey flat roofed dwellings were not common. It would therefore have consequent adverse streetscape impacts as well as unreasonable amenity impacts on its residential neighbour to the west. 2. The site is currently developed with a building out of character with the surrounding development in the same zone and, in terms of roof form, out of character with taller RFB development in the adjacent higher density zone. 3. The Council had approved the conversion of the existing vacant yet prominent dwelling on the site for a child care centre following negotiations to agree on an acceptable form of development which did not include further third storey elements. The modification application now seeks to add an additional storage area of some 70m² resulting in a total third floor area of some 82m². 4. The proposed development, as amended, complies with the maximum height permissible under the LEP and with the FSR. However, the LEP contains objectives associated with applying these controls. In terms of FSR, this includes an objective that the FSR proposed results in development which maintains an appropriate visual relationship between new development and the existing character of areas or locations that are not undergoing or likely to undergo a substantial transformation. 5. I accept the advice of the Council's planner that the area is currently not undergoing substantial transformation. There was no evidence on the Court view of any substantial transformation. It is more difficult to ascertain if the area is likely to undergo substantial transformation. Whilst the zone and controls limit the number of storeys to two, the maximum height permissible of 8.5m permits at least the single storey dwellings to be redeveloped or extended and the design of any such new development is unknown. 6. However, it is the case that the existing streetscape in terms of Kurnell Street and surrounding streets in the same zone as the site comprises overwhelmingly single storey dwellings with pitched roofs. The dwelling on the appeal site and a converted former shop were the only buildings in the locality referenced by the applicant as having a different roof form. Furthermore, the only dwellings in the R3 zone in the area with a third storey element referenced by the parties is the existing dwelling on the site which was accordingly acknowledged as being anomalous albeit existing within the streetscape. 7. Whilst the Council had accepted the existence of the existing anomalous building in the streetscape and had supported its reuse for a child care centre, this did not mean that the Council supported exacerbation of the anomaly in the manner proposed. 8. Based on my view of the site and surrounds, and given the history of the approval of the child care centre on this site and the controls which apply, I find no basis for approving the modification to the development now sought. 9. Firstly, to approve the modification suggests the development should not have been approved in the first instance at the capacity proposed, being the maximum size for a child care centre in the zone, if there was considered by the applicant to be inadequate storage for the centre to operate. 10. Secondly, the evidence provided by the Council in terms of the Council report on the original application and the conditions imposed on the approval make it clear approval to the child care centre was only on the basis that there are no additional third storey elements. 11. Thirdly, whilst the concern that the proposed additional floor space would be used as a dwelling was not pressed by the Council with the applicant's offer to remove the bathroom and kitchenette, the proposed storage area was not proposed to be reduced with the deletion of these elements. Instead, the areas formerly allocated to these uses were simply to be added to the 'required' storage area. I was not satisfied that there was sufficient justification for the extent and design of the storage area proposed even without the additional areas previously allocated to a bathroom and kitchenette. 12. Given the proposed storage area would result in a not insignificant additional third storey element further increasing the visual prominence of an already uncharacteristic built form element in the streetscape, there would need to be sound basis for its approval. I do not find such a basis exists. 13. The modification proposed does not meet key objectives under the LEP and DCP in terms of maintaining an appropriate visual relationship with the existing character of an area (which does not, on the evidence, appear to be undergoing or likely to undergo transformation). It also does not minimise the impact on the character and amenity of the area required for development in the zone. 14. Furthermore, I agree with the Council that, if additional storage is now required, the size of the centre should be reduced to provide this. Alternatively, designs could be explored which would potentially justify this additional floor space, bulk and scale by way of a design which improves the visual discordance of the existing building in the streetscape rather than adding to it. 15. Finally, the proposed additional floor space would have adverse impacts on the neighbour to the west in terms of outlook and overshadowing resulting from the close proximity of the third storey. It was acknowledged by both parties that these neighbours were already impacted by the approved child care centre. Whilst the overshadowing of the proposed storage area may meet the required minimum provision under the controls between 9am and 4pm in midwinter, any additional overshadowing in the early morning and any increase in the visual impact or outlook when viewed from the upper level balcony and bedrooms of 4 Kurnell Street is simply not justified in the circumstances of the case. 16. Accordingly, the modification application is refused. Orders 1. The orders of the Court are:The appeal is dismissed; 1. The appeal is dismissed. 2. Modification Application DA-2016/426/B to an approved child care centre at 2 Kurnell Street, Brighton-Le-Sands is as approved by the Council on 15 December 2016 but to the extent that it also sought approval for additional storage, that aspect is refused; and 3. The exhibits, except Exhibits A and 4, are returned. __________________ Jenny Smithson Commissioner of the Court Amendments 18 January 2018 - Pursuant to UCPR 36.17, the slip rule, amend Orders of 29 August 2017 [Amendment to Order 2] 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: 18 January 2018