Land and Environment Court New South Wales Medium Neutral Citation: RAD 1 Holdings Pty Ltd v Burwood Council [2018] NSWLEC 1093 Hearing dates: 21 and 22 February 2018 Date of orders: 28 February 2018 Decision date: 28 February 2018 Jurisdiction: Class 1 Before: Smithson C Decision: 1. The applicant is granted leave to rely on amended plans. 2. The applicant is to pay the respondent's costs that are thrown away as a result of amending the development application as agreed or assessed under s97B of the Environmental Planning and Assessment Act 1979. 3. The appeal is allowed. 4. Development Application 181/2015 for multi dwelling housing and a residential flat building at 9-11 Oxford Street and 98 Wentworth Road, Burwood is approved subject to the conditions set out in Annexure "A". 5. The exhibits are returned except for Exhibits A, B, C, and 1. Catchwords: DEVELOPMENT APPLICATION: Residential flat buildings, amendments to convert one residential flat building to multi dwelling housing; response to context; site constrained notwithstanding controls; minimum lot size and frontage; site isolation; reasonableness of overshadowing; presentation of development; resolution of contentions by amended plans; resident objections; public interest Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Burwood Local Environmental Plan 2012 State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development Texts Cited: Burwood Development Control Plan 2012 Apartment Design Guide Category: Principal judgment Parties: RAD 1 Holdings Pty Ltd (Applicant) Burwood Council (Respondent) Representation: Counsel: Mr M Staunton, barrister (Applicant) Mr I Pickles, SC (Respondent) Solicitors: Landerer & Company (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2017/119683 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under section 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Burwood Council (the Council) of Development Application 181/2015 (the application) for residential development at 9-11 Oxford Street and 98 Wentworth Road, Burwood (the site). 2. The site comprises three lots which, when consolidated, extend between Wentworth Road to the west and Oxford Street to the east. The site is situated in a block bounded by Hornsey Street to the south, Wentworth Road to the west, Railway Parade to the north and Oxford Street to the west. 3. The site has a combined area of 675.7m² and frontages of 15.09m to Wentworth Road and 15.4m to Oxford Street. Each lot currently contains a dwelling and associated structures. 4. The site is adjoined on its northern boundary by a part 9/part 10 storey residential flat building (RFB), 'Wentworth Towers', which has a significant setback (containing a car park) to its southern boundary adjoining the site and generous landscaped setbacks from both Wentworth Road and Oxford Street. 5. Adjoining part of the site's southern boundary, fronting Wentworth Road, is a two storey detached dwelling being 100 Wentworth Road. To the south and east of this dwelling, adjoining the balance of the southern boundary and wrapping around the corner of Wentworth Road, Hornsey Street and Oxford Street is a two storey strata titled townhouse complex. 6. Opposite the site are heritage listed buildings at 34-36 and 50 Oxford Street, whilst redevelopment is underway on the north eastern corner of Hornsey and Oxford Streets for a Court approved townhouse development. 7. Surrounding development comprises a school as well as a mixture of older style and new RFBs, generally to the north in the vicinity of the railway station, and primarily lower density dwellings to the west and east, and south of Hornsey Street. 8. The application, as lodged in December 2015, proposed the demolition of all existing structures, consolidation of the lots and construction of two RFB's; one of 9 storeys fronting Wentworth Road (Building A) and one of 4 storeys fronting Oxford Street (Building B). Both RFBs would be built over three levels of basement parking with a total of 23 apartments proposed. 9. The application had been preceded by a pre-development application meeting. Based on the proposal at that meeting, the Council engaged an independent urban design consultancy, GMU, who recommended a significant reduction in height based on the site constraints and surrounding development. 10. The application was advertised and received strong opposition from residents of the adjoining Wentworth Towers and townhouses. Some 30 submissions were received including two petitions.The objectors raised concerns with overdevelopment in terms of the design, height, bulk and scale, heritage impacts, impacts on the streetscape and on the amenity of adjoining residents (in terms of overshadowing, visual impact, and noise), site isolation of 100 Wentworth Road, inadequate landscaping, and adverse precedent. 11. The application was refused in March 2017. The planning controls 1. The site is located within an area zoned R1 Medium Density Residential under the provisions of the Burwood Local Environmental Plan 2012 (the LEP). Both RFBs and multi dwelling housing are permissible with consent in the zone. 2. Throughout the R1 zone, the maximum permissible height and floor space ratio (FSR) controls vary. For the site, and properties in the block in which the site is situated and to the east, the maximum height is 26m and FSR is 3.0:1. However, immediately west and south of the site, separated by streets from this block, the maximum permissible height and FSR reduce substantially. 3. The applicant acknowledged that the controls are maximums as opposed to 'as of right' entitlements and that site context was an important assessment consideration given the tall RFB adjoining the northern boundary and the two storey lower density development to the south. The development, as lodged, and as subsequently modified, readily complied with both the height and FSR controls. 4. The site is not heritage listed and nor is it located within a heritage conservation area although there are listed heritage items opposite in Oxford Street and in the vicinity. 5. Residential development is subject to the provisions of the Burwood Development Control Plan 2013 (the DCP). The DCP contains a range controls from site planning and parking considerations to tree preservation, waste and stormwater management, landscaping and sustainability. 6. The application is also subject to the provisions of State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65) and therefore the Apartment Design Guide (ADG). Responding to the contentions 1. In responding to the appeal, the Council lodged a Statement of Facts and Contentions which raised eight contentions as well as requiring additional information to undertake the assessment. The eight contentions were: 1. Inadequate response to context – namely, insufficient regard had to been had to the existing and likely future context of the development in particular the existing lower scale residential development in the vicinity. Concern ranged from setbacks and separation distances to non-compliance with SEPP65 design principles, ADG and DCP provisions including the length of facades, minimum site frontage and overall building design, including the proposed facades. 2. Site isolation – in particular that the development would isolate the adjoining site at 100 Wentworth Road which had limited if any opportunity to amalgamate with the adjoining townhouse development to the south. The proposal had not shown how No. 100 could be feasibly redeveloped and there was insufficient evidence that amalgamation of the site was not feasible as there was no evidence of genuine negotiations to acquire the site. 3. Heritage – the design response to the Oxford Street frontage was considered inadequate given the proximity of adjacent heritage items and established streetscape settings. Specifically, Building B was of an unacceptable bulk, scale and character relative to the heritage items opposite at 34, 36 and 50 Oxford Street whilst concern was expressed with the form, scale, materials and finishes of both buildings. 4. Amenity – there would be adverse amenity impacts for occupants and neighbours, in particular overshadowing of the townhouses to the south. 5. Parking – was inadequate as was the design information submitted on the access and parking arrangements. 6. Waste management – provision was not satisfactory. 7. Trees – namely, the proposal failed to demonstrate that all of the existing trees within 5m of the site would not be impacted by construction. 8. Public interest – the application should be refused as it was contrary to the public interest given the extent and validity of concerns raised in submissions 1. The appeal was the subject of conciliation under section 34 of the Land and Environment Court Act 1979. Following termination of the conciliation conference, in October, 2017, leave was granted by the Court to amended plans which sought to address a number of contentions. In essence, the amended plans proposed a reduction in the number of dwellings from 23 to 15, reduction in the number of parking spaces from 25 to 15, reduced bulk and scale of the larger RFB (Building A), conversion of the lower RFB (Building B) into multi dwelling housing comprising three 2 storey townhouses with attics, and increased setbacks, landscaping and articulation. 2. A revised Statement of Facts and Contentions was filed with the Court by the Council in response (Exhibit 1). The number of contentions was reduced to four being: inadequate response to context; site isolation; amenity for residents and neighbours; and public interest matters arising from objections. 3. In terms of site isolation, the Council was satisfied that the applicant had taken reasonable measures to acquire 100 Wentworth Road however, these efforts were unsuccessful. The remaining contention was whether the amended design would facilitate reasonable redevelopment of No. 100 in isolation in the future and whether the dwelling at No. 100 would have acceptable amenity in the interim. 4. In terms of the amenity for residents and neighbours, this related primarily to the solar access to some of the apartments in the proposed RFB and to the impacts on the private open space of townhouse 4 at 13-15 Oxford Street. 5. The applicant and the Council continued to conciliate outside the formal conciliation process to address the remaining contentions. Expert referral was undertaken between urban designers and planners for the parties (the design experts) with Joint Expert Reports filed by these experts by the time of the hearing. The experts agreed on further plan amendments or recommended conditions of consent to address the vast majority of remaining contentions. 6. The hearing commenced on site where the Court heard from four objectors who raised similar concerns to those raised in written submissions, particularly the bulk, scale, outlook and overshadowing impacts, the appearance of the RFB, and the isolation of 100 Wentworth Road. However, the objectors also emphasised the limited parking in the area and the impact on local traffic. There was general support for the townhouse development now proposed fronting Oxford Street and suggestions that a similar built form should present to Wentworth Road. 7. The Court viewed the site and surrounding street block in the presence of the parties and their experts. Following the site view, the parties advised the Court that, with further modifications likely agreed to by the applicant, all matters could potentially be resolved in which case the Council would no longer oppose the application. 8. The hearing was briefly adjourned whilst these further changes were undertaken to the application and reviewed by the experts. A joint combined urban design and town planning experts report on these amendments was subsequently filed (Exhibit 6). The report addressed the remaining contended matters and the effect of the amendments in resolving all contentions. 9. The amendments included removing a floor from the RFB so that the overall height was reduced to 6 storeys with the sixth floor recessed. Changes were also undertaken to improve the facades and appearance including to the driveway entrance and to the windows of the northern wall of the RFB. Apartment layouts were amended to reflect the reduced height, with fewer apartments and with Levels 4 and 5 containing two level apartments ('under and over' apartments) thus enabling a reduction in the height of the lift overrun. A non-trafficable roof was also proposed in the south east corner of the RFB with a curved roof form providing a curved edge to the eastern facade. Other facade changes included to the materials of construction and increased articulation. 10. The design experts advised the Court that the amended plans resolved the context, scale and built form concerns of the Council given the reduction in the overall height, FSR/scale of the development, facade treatments, changes to the roof form, and the two storey apartments at the upper level enabling the lift overrun to be reduced in height and incorporated into the roof form rather than adding additional height and overshadowing. 11. The experts were satisfied that the amended built form would allow for redevelopment of the adjoining site at 100 Wentworth Road whilst at the same time treating the boundary wall to No. 100 in the event it is not redeveloped. Furthermore, a proposed condition of consent enables a right of access to No. 100 across the site in the event of its redevelopment. 12. In summary, the experts considered that the reduction in height coupled with reduced bulk provided a development that had an acceptable visual fit when viewed from the public domain and from private land holdings. They had considered the objections to the development by neighbours and agreed that the amended plans were acceptable and worthy of approval. 13. Furthermore the amendments now provided satisfactory solar access to townhouse 4 at 13-17 Oxford Street with two hours achieved by the reduction in the height of the building and the amendments to the lift and fire stair. In addition, adequate solar access would now be received in the living room windows of the north western apartments thus meeting the design criteria of the ADG. 14. As three units were deleted in the amended application, the development, now at 12 dwellings, complies with the parking rates required by the ADG. This enables allocation of one bay per dwelling along with three visitor parking bays (although only 2.4 bays are required). This provision is consistent with both RMS guidelines and the ADG. 15. Leave was granted to the amended application, not opposed by the Council, subject to the applicant paying costs under s97B of the Act, not opposed by the applicant. A final set of agreed conditions was subsequently filed with the Court. Findings 1. Given all of the contentions had been resolved between the parties, and addressed the concerns raised in submissions, insofar as they are reasonable or relevant to the application, I have determined that the appeal should be upheld and the development application, as amended, be approved subject to the agreed conditions. 2. In coming to that conclusion, I accept that adjoining residents will remain concerned as to the impact on their outlook and on local parking demand. Ultimately however, I find that the amended design, developed in collaboration between the parties, is a reasonable compromise between what the controls allow and what neighbours would prefer to see developed on the site noting the controls allow a substantially taller and bulkier development of the site than was ultimately proposed. 3. In this regard, the development is substantially below the maximum permissible height of 26m and, as finally amended, has an FSR of 1.48:1 which is less than half the permissible FSR of 3.0:1. 4. The development has been modified in response to its context and the site constraints which include a higher RFB tower on one boundary, a town house development and dwelling house on the other, and heritage buildings and lower rise development opposite. As I have indicated, the controls allow a significantly taller and bulkier development than is proposed. 5. Given these circumstances, it is not unreasonable that an appropriately designed RFB of reduced height to that permissible by the controls occupies part of the site, as is proposed fronting Wentworth Road, whilst the multi dwelling housing fronting Oxford Street, in the form of townhouses with attics, was acknowledged by both the objectors and the Council as being an appropriate outcome for that frontage. 6. Parking, including visitor parking, now exceeds the required provision under the relevant controls and a condition of consent states that residents of the development are not permitted to participate in any existing or proposed Council on-street resident parking schemes, thus restricting the impact of future occupants on on-street parking. 7. Furthermore, clause 30 of SEPP65 precludes refusal of the application on the basis of the amount of parking provided, if the amount complies with that required by the ADG, as is the case in this instance. 8. Overall, I am satisfied on the basis of the modifications undertaken, expert evidence provided and agreed conditions of consent, that there will be no adverse amenity impacts on any adjoining residential property or the area which would warrant refusal. Orders 1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans. 2. The applicant is to pay the respondent's costs that are thrown away as a result of amending the development application as agreed or assessed under s97B of the Environmental Planning and Assessment Act 1979. 3. The appeal is allowed. 4. Development Application 181/2015 for multi dwelling housing and a residential flat building at 9-11 Oxford Street and 98 Wentworth Road, Burwood is approved subject to the conditions set out in Annexure "A". 5. The exhibits are returned except for Exhibits A, B, C, and 1. ............................ Jenny Smithson Commissioner of the Court Annexure A (137 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: 28 February 2018