Grant v Sutherland Shire Council [2009] NSWLEC 1199

Land and Environment Court of New South Wales

CITATION : Grant v Sutherland Shire Council [2009] NSWLEC 1199

APPLICANT James Grant PARTIES : RESPONDENT Sutherland Shire Council

FILE NUMBER(S) : 10025 of 2009

CORAM: Bly C

KEY ISSUES: DEVELOPMENT APPLICATION :- residential flat building, building height, floor space ratio, streetscape SEPP 1 objections.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2006 Sutherland Shire Development Control Plan 2006 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development

Winten Developments Pty Ltd v North Sydney Council [1999] NSWLEC 229 CASES CITED: Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Super Studio v Waverley [2004] NSWLEC 91

DATES OF HEARING: 26 and 27 May and 2 June 2009

DATE OF JUDGMENT: 22 June 2009

APPLICANT Mr S Stevens (Agent for the Applicant)

LEGAL REPRESENTATIVES:

RESPONDENT Mr J. Cole (Solicitor) SOLICITOR HWL Ebsworth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

22 June 2009

10025 of 2009 Grant v Sutherland Shire Council

JUDGMENT Introduction 1 This appeal relates to development application for the demolition of three dwelling houses and the construction of four-storey residential flat building containing 14 dwellings with basement parking for 29 cars at 7-11 Richmount Street, Cronulla.

2 The gently sloping site has a southern frontage of 40.235 m to Richmount Street and an area of 1765 square metres. There is some existing canopy vegetation in the vicinity of the northern/rear boundary of the site.

3 The site is located on the northern side of Richmount Street, opposite Coronation Avenue and close to Richmount Street's intersection with Parramatta Street. To the west are a number of detached dwelling houses and to the east on the corner of Parramatta Street is a four-storey residential flat building. To the north of the site generally beyond the rear boundary there are several four storey residential flat buildings. Opposite the site there are attached and detached one and two-storey dwellings. It is located within 700 m of the Cronulla town centre and some 800 m to the Cronulla Railway Station.

4 The appeal was lodged with the Court on the basis of council's deemed refusal of the development application.

5 This judgment concludes that the appeal should be dismissed for reasons essentially involving the proposal's failure to meet the applicable height and floor space ratio requirements of the planning controls. Planning controls 6 The site is subject to the provisions of the Sutherland Shire Local Environmental Plan 2006 and the Sutherland Shire Development Control Plan 2006. Under the LEP residential flat buildings are permissible with development consent in Zone 6-Multiple Dwelling B. Because the development exceeds the height and floor space ratio development standards in the LEP the applicant has provided objections (in the Statement of Environmental Effects) under State Environmental Planning Policy No. 1 - Development Standards.

7 Both the LEP and the DCP were amended (Sutherland Shire Local Environmental Plan 2006-(Amendment 4)) in January 2009 but because this development application was lodged with the council prior to this date, the amendment to the LEP effectively becomes for the purposes of the application, a draft LEP. The amended and adopted DCP can, in my opinion, be similarly treated.

8 Also applicable is State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development. Advertising 9 The application was advertised and ten objections were received. Matters of concern expressed in these objections essentially include: o The proposed building is too tall and too close to the boundaries of the site. There is insufficient separation between it and its neighbours. o The upper levels of the proposed building including the terraces will enable views into the neighbouring residential flat building at 69-71 adversely affecting its privacy. These same levels and terraces will overlook the rear yards of neighbouring dwelling houses. o The proposed building will overshadow the site and some of the lower-level windows in the neighbouring residential flat building thus adversely affecting its amenity. o The proposed development does not comply with the council's planning controls including building height, setbacks, density, landscaped area, energy efficiency and solar access. o The top floor of the building is not an attic; therefore it is a four-storey building and is thus not sympathetic with the lower scale development on the opposite side of Richmount Street. o The fourth level of the building will adversely affect the outlook, including district views from the neighbouring residential flat building at 69-71 Architectural Review Advisory Panel 10 Council's Architectural Review Advisory Panel reviewed the application and concluded that there is a need for the design to be reviewed and improved by pursuing a three-storey solution. It reached this conclusion taking into account that existing development on the south side of Richmount Street consisted of two-storey buildings and that those new buildings represent a transition from the low-density area to the medium density precinct in which the subject development is situated.

11 Other concerns raised by the Panel include: o The curved form of the balconies are not in keeping with the simple linear forms of the building itself. o The depth of the dwellings (ie the distance between windows and kitchen walls) being in excess of 10 m exceeds the recommended maximum distance of 8 m in SEPP 65. o The main building entry is located adjacent to two egress doors thus affecting the clarity of the main building entry. o The western half of the building elevation in Richmount Street needs to be broken down further to enable the building to present a more residential scale. Also a better design would result if the car park entry was relocated and this would enable a narrower building footprint and increased setbacks from site boundaries. o Privacy issues between bedrooms and balconies. o The landscaping design needs to be improved. 12 Regarding the proposed fourth level in the building the Panel was of the opinion that it does not meet the definition of attic space as defined in the LEP and the building therefore exceeds the maximum building height of three storeys. Despite this it was observed that: "However, the proposed fourth story is set back to minimise visual impact and was considered to be a reasonable design solution when considered in isolation. It must be demonstrated that the fourth story causes no additional solar impact (shadow diagrams to be provided for 9am and 3pm or privacy issues with neighbouring properties." 13 The Panel concluded that: "The proposed building would benefit from further rationalisation of the building form to improve the relationship between units. This can be achieved by relocating the basement car park entrance. The building elevations would benefit from further modulation of the street elevation and rationalisation of the treatment to balconies and the main building entrance. The landscaping to the rear of the site could be improved by rationalising the extent of the basement to allow more existing trees to be maintained and also addressing the issues raised above." Contentions 14 In essence the eight pages of contentions as contained in the Statement of Contentions amount to the following three issues: 1. The proposed building is an unacceptable overdevelopment of the site having regard to the design of the building in terms of height, density, streetscape and visual impact taking into account the relevantly applicable objectives and the building height, floor space ratio and setback provisions in the planning controls. In this regard the SEPP 1 objections should not be upheld. 2. The proposal is unsatisfactory because the landscaping scheme contains unacceptable and insufficient plantings and does not comply with the landscaped area development standard in the LEP and the maximum site coverage requirement in the DCP. Also two mature trees are to be removed. 3. The proposal has adverse amenity impacts on neighbouring properties as a result of overlooking and does not provide adequate aural privacy for these neighbours. Also the building at 69-71 Parramatta Street will be overshadowed. 15 The further contention in relation to the basement car park and access ramp has, in my opinion been satisfactorily resolved by amended plans (tendered during the hearing), notwithstanding that the disabled car parking spaces could have been better located.

16 Various are the concerns including: tree loss; entrance design and security; dwelling to dwelling privacy; communal open space; and the internal amenity of the dwellings whilst not determinative of themselves nevertheless contribute to the unacceptability of the proposal Overdevelopment and streetscape 17 Clause 33 of the LEP deals with the building height of proposed residential flat buildings and sets for this site, in subcl (14) a maximum of three storeys. The objectives of this development standard are essentially to: ensure the scale of buildings is consistent with the desired scale and character of the street and locality; to avoid visual impacts when viewed from adjoining properties and the street; to allow reasonable daylight access to all buildings; and to minimise amenity impacts on nearby buildings in terms of views, privacy and overshadowing.

18 Clause 35 of the LEP deals with building density and it was agreed that the relevantly applicable maximum floor space ratio for this site as specified in subcl (9) is 0.98:1. The objectives of this development standard are essentially to: ensure that development is in keeping with characteristic development in the local area; to provide a degree of consistency in relation to the bulk and scale of new buildings in their context; and minimise the impacts of buildings on the amenity of adjoining residential properties.

19 In the joint town planning report Miss D Pinfold (the council's expert) and Miss L Wynne (the applicant's expert) agree that the proposed building is four storeys in height and that its actual floor space ratio is 1.15:1. Hence, the applicant relies upon the SEPP 1 objections in the SEE to justify these exceedences. SEPP 1 objection-floor space ratio 20 The SEPP 1 objection dealing with the exceedence of the floor space ratio development standard essentially takes the approach that strict compliance with the standard will tend to hinder the attainment of the objects of the Environmental Planning and Assessment Act 1979 because the proposed building is compatible in character, height, scale, bulk and built form with existing and proposed residential development in the street. More particularly it asserts that the objection is well founded because it will achieve the stated floor space ratio objectives and that strict compliance would tend to hinder the attainment of the objects of the EPA Act.

21 The objection explains that the underlying objective or purpose of the floor space ratio development standard is derived from the stated objectives in clause 35 and the objectives of Zone 6. The latter objectives require that residential flat buildings compliment the predominantly urban landscape of the zone and be of a scale and nature reflecting the location as part of an urban centre. Also, to provide housing choices at an appropriate density taking into account the site's proximity to the retail and commercial centre. In this context it argues that compliance with the maximum allowable floor space ratio is unreasonable and unnecessary for the following essential reasons.

22 Firstly floor space exceedence could have been accommodated in an attic within a theoretical roof form been generated from this building's footprint. Such an attic would not comprise a storey as defined in the LEP. The definition of storey in the LEP is: "Storey means a space within a building situated between one floor level and the floor level above, or the ceiling or roof above and includes the space within the following: (a)... (b) an attic within a residential building, but only if: (i) the roof of the attic is pitched from more than 300 mm above the floor of the attic or at an angle of more than 35°, or (ii) the area of the attic exceeds 60% of the floor space of the floor level below." 23 It is also to be noted that the floor space within such an attic, not being a storey, would not be counted as floor area for the purposes of determining floor space ratio because "gross floor area means the sum of the floor area of each storey of a building..." (my emphasis).

24 Seemingly, taking these things into account the objection contends that such an attic design would result in a scheme that complies numerically with the floor space ratio development standard but would have far less architectural merit than the proposal. Hence whilst the proposal does not comply, it would have a similar visual bulk with a more desirable floor plan and would thus comprise a superior design outcome.

25 Secondly the proposed building will essentially read as a three-storey building when viewed from Richmount Street, similar in scale to other nearby and adjoining residential flat buildings. It will therefore sit well within its immediate setting. Also the stepping back at the top level will be within what would otherwise be the normal roof plane of a pitched roof. Thirdly the proposed building is well-designed and will contribute positively to the visual amenity and character of the streetscape. There will be no significant adverse amenity impacts to neighbouring properties particularly in relation to overshadowing, overlooking, loss of privacy, views or noise.

26 Thirdly there are to be planted a number of new trees up to 8 m in height and other landscaping within the front rear and side setbacks of the development. This will involve a significant increase in vegetation over the whole site. Fourthly the proposed building compares favorably with the objectives of Zone 6 and will be consistent with the objectives of the development standard.

27 Ms Wynne supported the objection for the reasons contained therein. She emphasised that the proposed building's overall bulk and scale is consistent with that of the building anticipated by the planning controls referring to the above-mentioned discussion in relation to an attic within a pitched roof form. She also pointed out that by providing the floor area within an attic rather than within a fourth storey of superior design would result in a less desirable floor plan for future occupants.

28 Miss Pinfold did not believe that the objection was well founded because it does not achieve the associated objectives of the development standard and because the building would not be in keeping with the characteristics of the locality, particularly having regard to its location on the boundary of the significantly lower density Zone 4 - Local Housing. It would also be inconsistent with the intended bulk and scale of new residential flat buildings in the locality and would adversely impact upon the amenity of adjoining residential properties in terms of visual and acoustic privacy, visual intrusion and overshadowing. The fourth storey will be readily apparent from the opposite side of Richmount Street and from within Coronation Avenue. The upholding of the development standard would be in the public interest especially as the site is located at the interface with Zone 4. SEPP 1 objection-building height 29 The SEPP 1 objection dealing with the one-storey exceedence of the three-storey building height development standard in the LEP essentially takes the approach that strict compliance with the standard will tend to hinder the attainment of the objects of the EPA Act. It refers to the definition of storey in the LEP (see above) and notes that the fourth storey has been designed with only 60% of the floor space of the level below and that a pitched roof could (with some redesign) be formed over this area rather than the now proposed flat roof. Such an attic would not, by definition, be a storey. It is nevertheless accepted that the fourth level in this building is a storey.

30 The objection explains that the underlying objective or purpose of the floor space ratio development standard is derived from the stated objectives in clause 33 of the LEP. These objectives require that the scale of buildings should be consistent with the desired scale and character of the street and locality and that they complement any natural landscaped setting. They also refer to reasonable daylight access the minimisation of impacts on adjoining properties in terms of views privacy overshadowing or visual intrusion and visual impacts. It also refers to the objectives of Zone 6 that require that residential flat buildings complement the predominantly urban landscape of the zone and be of a scale and nature reflecting the location as part of an urban centre. Also, housing choices at an appropriate density, taking into account the site's proximity to the retail and commercial centre are required. In this context it argues that compliance with the maximum allowable floor space ratio is unreasonable and unnecessary for the following essential reasons.

31 Firstly, the proposed residential flat building will read as a three-storey building from Richmount Street and will therefore sit comfortably within the immediate setting of the four-storey residential flat buildings adjoining the site to the north and east. In this context the top of the front balcony wall of the three-storey section of the building at RL 37 will be substantially lower than the maximum RL of 39.8 (top of pitched roof) for the adjoining building at 69-70 1 Parramatta Street. (I do note however that the topmost RL of the building at 40.624 is higher than the neighbouring building although other RL's of between 39.424 and 39.776 are at a similar height to the top of the roof). Also the fourth floor is set back 3 m behind the street wall edge thus minimising its visibility.

32 Secondly, consistent with the storey definition, the attic level will comprise only 60% of the floor space of the level below and could fit within a pitched roof envelope described by the definition of storey. Also as discussed above it would have a more desirable floor plan and would comprise a far superior design outcome with a similar visual bulk and a more interesting roof form. Thirdly the most visible front edges of the building within the three-storey height limit with the fourth storey located towards the middle of the site where it is less visible. 33 Fourthly the building is well-designed and appropriately landscaped and will contribute positively to the visual amenity and character of the streetscape without resulting in any significant adverse amenity impacts to neighbouring residential properties. There will be no unreasonable overshadowing, overlooking, loss of privacy, views or noise impacts.

34 The objection concludes that the proposed development compares favorably with the objectives of Zone 6 and the objectives of the development standard and hence the objection is well founded. Also strict compliance with the standard would tend to hinder the attainment of the objects of the EPA Act. Therefore strict compliance with the development standard would be both unreasonable and unnecessary.

35 Miss Wynne supported the objection for the reasons contained therein. She emphasised that the fourth storey will only be partially visible from some locations in Richmount Street and Coronation Avenue as a result of it being set back behind the principal facades of the building and fitting within the potential roof line of a three-storey building. Also the fourth storey will have minimal impact on neighbouring properties and compares favorably with the objectives of Zone 6.

36 Miss Pinfold believed that the objection was not well founded because the development does not meet the objectives of the development standard. In this regard she explained that the desired scale and character of Richmount Street is that of a zone interface to 2 storey low-density residential flat development. Also the top story would adversely impact on the amenity of adjoining and nearby properties including privacy, outlook and solar access. It is visually intrusive when viewed from these properties and from the street. She also did not accept the applicant's approach of comparing the fourth storey to a pitched roof. Winten Developments Pty Ltd v North Sydney Council 37 As referred to above both of the SEPP 1 objections rely, in part, upon the argument that the additional fourth storey and the additional floorspace could essentially be accommodated within the roof space that might theoretically be constructed on top of the proposed building. It is clear that to have a three-storey building with a roof is, in terms of the planning controls, a reasonable expectation (although this building with a pitched roof would, according to Mr Brooker, be "a disaster"). However the approach of pitching a roof on this building and designing floor space to fit within this theoretical roof then removing the roof is not an acceptable approach.

38 In Winten Developments Pty Ltd v North Sydney Council [1999] NSWLEC 229, Lloyd J, in dealing with the question of a "well founded" objection under SEPP 1 held (at 59) that: "... the consent authority is not required to evaluate the objection by comparison with what might otherwise be developed on the site. What has to be assessed is the impact of the proposed residential flat building." 39 In this regard I accept the submissions made on behalf of the council that Winten Developments should be applied in this case to the effect that the comparison of the proposal with a theoretical pitched roof that might be constructed on top of the proposed three-storey part of the building is not a relevant consideration.

40 Hence, Miss Pinfold's contention that the proposed building contravenes the floor space ratio development standard "by virtue of the gross floor area of its non compliant fourth storey" and exceeds the height development standard by one storey needs to be assessed without reference to the theoretical roof form. Also, the comparison becomes even less relevant taking into account her observation that the suggested pitched roof would not look like another storey whereas the proposed fourth storey does. Similarly Mr Brooker in dealing with attics and roof terraces rejects the justification of the fourth storey as a substitute for an attic because what is proposed is simply another floor with large glazed openings and with large open external deck areas. Consequently, even taking into account the fact that the fourth storey is set back behind the third storey what is proposed is and will present as a four-storey building and this is not what is contemplated by cl 33 of the LEP. Streetscape 41 Clause 48 of the LEP deals with urban design and amongst other things seeks to achieve developments that "strengthen, enhance or integrate into the existing character of ... streetscapes" and will "facilitate improvements to the public domain". Similarly the Streetscape and Building Form objectives of the DCP in Chapter 3-Urban Design (s 11) seek to ensure that development visible from the street makes a positive contribution to the streetscape and existing or desired future character and be compatible with the scale, character and landscape setting of the immediate vicinity.

42 In their joint architectural report Mr P Brooker (for the council) and Mr J Grant (for the applicant) considered the impact of the proposed building on the Richmount Road streetscape. Whilst Mr Grant defined streetscape has comprising development that is on the same side of the street as the proposal, Mr Brooker believes that both sides of the street need to be taken into consideration.

43 In my opinion both sides of the street should be taken into consideration because pedestrians and vehicle occupants whilst traveling along the street (the public domain) will perceive development on both sides. Hence the proper approach to applying the urban design and streetscape provisions of the LEP and the DCP requires both sides of the street to be taken into account.

44 In principle, as acknowledged by the Panel, considering the existing and likely future development (of residential flat buildings) along the north side of Richmount Street, a building of the kind here proposed might not be so out of character as to be unacceptable. In this regard I understand Mr Grant's opinion that the proposed building demonstrates a transition of scale from the existing four-storey development to the east. However when the whole streetscape encompassing both sides of the street is considered, this outcome becomes less tenable. Both Mr Brooker and Miss Pinfold stressed the need to consider the site's transitional location at the interface between higher and lower density zones under the LEP and the consequential need for development to be designed accordingly. To this end Mr Brooker explained that the scale of the proposed development should also address the lower existing building forms on the opposite side of the street as well as the taller buildings to the north. 45 In this context I agree with Miss Pinfold's application of the planning principle in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 that deals with development at zone interfaces: "... at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like." 46 Hence, whilst the residents who live opposite the site should anticipate development in the order of three storeys as permitted in Zone 6 they do not have to accept development that is taller than three storeys. Indeed they might even be entitled to expect that the redevelopment of land along the north side of Richmount Street might be lower than three storeys. As a consequence if development is to occur at three storeys or taller there should be little or no impact on those residents. The contrary has occurred with the residents complaining that the appearance of the building would be too big and bulky and would cause greater overlooking (particularly from the roof terraces) than would otherwise be the case. In this regard Miss Pinfold agreed with the residents concerns. Landscape and streetscape 47 Clause 11.a.1 of the DCP contains objectives for all built development. These objectives require all elements of development to make a positive contribution to the streetscape and existing or desired future character. In addition development is to be compatible with the scale, character and landscaped setting of the vicinity or the desired character of the locality.

48 More particularly, cl 36 of the LEP deals with landscaped area and sets in subcl (7) a minimum landscaped area of 60% of the site. However this development standard was changed to 40% by Amendment 4 to the LEP and because I accept that the proposal now either complies or virtually complies this is not a matter of concern and the SEPP 1 objection in the SEE could be upheld.

49 Despite this Miss Pinfold and Mr J. Hilliard (council's landscape and arborial expert) were concerned that the landscape proposal was generally unsatisfactory and would not be successful. They were especially concerned that the minimum front set back area was, contrary to the requirements of the DCP, infringed by balconies, podiums and masonry walls that would restrict landscaping opportunities. The objectives of the landscaped area development standard involve: retention or provision of vegetation that contributes to biodiversity; the enhancement of the tree canopy of Sutherland Shire; the minimisation of urban run-off; and to ensure that the visual impact of development is minimised by the appropriate provision and maintenance of landscaping. Both Mr Grant and Miss Wynne were of the opinion that the landscaping scheme would be successful and would result in an appropriate screening and setting for the building.

50 In my opinion, and despite Mr Hilliard's concerns to the contrary, I think it is likely that the proposed plantings would be reasonably successful. Alternatively, different plantings could be successful in the same deep soil and other planting areas. Despite this I accept the evidence of Mr Brooker that the private courtyard and other structures within the front setback areas would have a dominant and inappropriate visual presentation to the public domain. In turn this denies reasonable opportunities for appropriate landscaping necessary to sufficiently soften "the hard edge built forms" as is appropriate taking into account the streetscape and most importantly the desired future character of the area. Impacts on neighbours 51 The fourth storey of the proposed building in terms of overshadowing, loss of privacy, loss of outlook and building bulk will variously affect a number of bedroom windows in the dwellings in the neighbouring 69-71 Parramatta Street. Overlooking and building bulk will variously affect the rear yards of the detached dwelling houses in Richmount Street to the west of the site. By themselves these matters might not have been significant, taking into account matters such as landscaping and other screening and privacy devices. However, Super Studio v Waverley [2004] NSWLEC 91, suggests the need for "heightened sensitivity" when dealing with impacts associated with non-compliance with planning controls, explaining that: "... the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it." 52 Consequently, these impacts take on greater significance in the light of the fact that they result from that part of the building that significantly infringes two development standards. Conclusion 53 In my opinion, in an architectural sense and in isolation this proposed residential flat building could be considered to be an acceptable design in its presentation and in terms of the quality of the spacious dwellings, despite some flaws. However having been persuaded by the evidence marshalled on behalf of the council and for the reasons given above I have decided that the underlying objectives of the development standards have not been met. Therefore SEPP 1 objections should not be upheld and as a consequence the appeal is dismissed.

54 Finally, as mentioned above, during the hearing the applicant was permitted to tender amended plans and these plans became the subject of the application. These plans include modifications to the basement car park including the driveway and modifications to the planter box arrangements on the fourth floor terraces. These plans were tendered so as to resolve at least one of the issues in dispute and the respondent council was readily able to deal with them within the constraints of the hearing. In my opinion these modifications comprise, for the purposes of 97B(1) of the EPA Act, "a minor amendment" consequently no costs order is required to be imposed Orders 55 The orders of the Court are therefore: 1. The appeal is dismissed 2. The development application for the demolition of dwelling houses and the construction of four-storey residential flat building containing 14 dwellings with basement parking for 29 cars at 7-11 Richmount Street, Cronulla is determined by refusal. 3. Exhibit Q is retained.

___________________ T A Bly Commissioner of the Court ljr

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.