A R Design v Campbelltown City Council

[2006] NSWLEC 93

Land and Environment Court

of New South Wales

CITATION:	A R Design v Campbelltown City Council [2006] NSWLEC 93
PARTIES:	APPLICANT A R Design RESPONDENT Campbelltown City Council
FILE NUMBER(S):	10688 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application :- Heritage Floor space ratio Waste disposal .
LEGISLATION CITED:	Campbelltown Sustainable City Development Control Plan .
CASES CITED:	Project Venture Developments v Pittwater Council (2005) NSWLEC 191; Super Studio v Waverley (2004) NSWLEC 91; .
DATES OF HEARING:	19 October 2005 and 20 and 27 February 2006
EX TEMPORE JUDGMENT DATE:	02/27/2006
LEGAL REPRESENTATIVES:	APPLICANT Ms M-L Taylor, solicitor Norman Waterhouse Lawyers RESPONDENT Mr A Seton, solicitor Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

27 February 2006

05/10688 AR DESIGN V Capbelltown City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal, on 28 June 2005, by Campbelltown City Council (the council) of Development Application 872/2004.

2 The application, as originally came before the Court, is for the demolition of two existing dwellings spread across a total of four allotments at 7 - 9 Ruzac Street; 88 Broughton Street and 92 Broughton Street, Campbelltown (the site) and the construction of twenty-two, two-storey dwellings in a number of clusters (with basement car parking).

3 The site is one which has frontages to both Broughton Street and Ruzac Street and has a considerably unusual configuration as a consequence of the topography and the boundaries of the adjacent properties. It is one that has two accesses to Broughton Street and a significant frontage to Ruzac Street.

4 The site has an area of some slightly in excess of 6660 square metres. It slopes from south-east to north-west. Located on its south-western boundary is a heritage listed house (known as St Elmo) and its curtilage. The curtilage of St Elmo, on its western side, comprises a second, vacant allotment (a former tennis court for St Elmo).

5 The site is partially zoned Residential 2B and partially zoned, along its Broughton Street frontage, as Special Uses for future road widening for Broughton Street.

6 The development is permissible within the Residential 2B zone and it is entirely within that zone that all relevant and contested parts of the built form of the proposal are located.

7 I first attended the site on 19 October 2005 with the representatives of the parties when I had the opportunity to hear informal evidence from a number of the resident objectors.

8 As a consequence of that hearing and a number of matters raised by the resident objectors, in particular my concerns that the residents’ objections relating to waste disposal on the site as proposed were not likely to lead to approval of the project, the appeal was adjourned to permit the applicant to lodge revised plans.

9 During the subsequent hearings over the last week there have been further significant modifications to the plans.

10 It is appropriate at this stage to make two observations.

11 The first is that I am obliged, as a long settled matter of law, to deal with this proposal in accordance with the planning regime and the anticipated future uses permitted by that planning regime for the site.

12 The consequence of that, in these proceedings, is that, as the site is zoned for multi-unit development (a form of development conceded by Mr Seton, solicitor for the council, as being appropriate and capable of being given effect to on the site), I must consider the present proposal in that context.

13 The second is that it is also long settled that I am obliged to assume that an applicant, if granted a development consent subject to conditions, will abide by those conditions of consent and, as in this case there would be long term conditions attaching to future residents of the site which oblige them to behave in particular fashions, that such future residents, too, will abide by those conditions.

14 The consequence of that presumption is, if any condition is breached either in the immediate or longer future, that is a matter for enforcement (either public or private) in a Class of the Court’s jurisdiction which I am not exercising in these proceedings (and, indeed, am not empowered to exercise at all).

15 I indicated to Mr Seton and Ms Taylor, solicitor for the applicant, prior to closing addresses, that there were three matters which were of significant concern to me in these proceedings and which were potentially determinative. They were:

• the adequacy or otherwise of waste disposal on the site;
• the exceedance of the floor space ratio; and
• the Ruzac Street streetscape.

16 There are a variety of other issues - important to the residents but nonetheless, in an overall planning context, of lesser importance - which might contribute to a refusal but none of them in themselves would warrant a refusal of the project.

17 It is therefore appropriate that I turn to each of the three major issues for first consideration of the matter because, if the project fails at any one of those three, I need not concern myself with any of the other issues.

18 With respect to waste disposal, it is now proposed that the putrescible waste generated by the site will be disposed of by kerbside collection through the council’s contractor by collection as part of the normal scheme of collection and that this will occur on the Broughton Street frontage.

19 Mr Gill, the responsible officer of the council, who gave evidence in these proceedings, indicated that that was an appropriate and acceptable method of dealing with this matter.

20 With respect to the removal of non-putrescible waste, that is both recycling and green waste, it is proposed that there will be a now modestly relocated and redesigned delivery and loading bay in Ruzac Street which will operate for some twenty minutes or so once or twice a week for the purposes of removal of those wastes - there being a limit of a maximum of eleven bins, on any one occasion, being brought via the bin hoist to the surface from the basement car park (which will be the permanent repository of the bins).

21 In the context of, first, the subterranean aspect of the waste management, the council pressed, this morning, a number of additional matters relating to the physical design of the waste storage areas underground. The applicant has conceded that it is appropriate that conditions requiring those to be complied with are imported into the conditions of consent.

22 In the face of that concession, I am satisfied that the underground storage of the waste can be appropriately conditioned. Indeed, the bin storage areas shown on the basement plan are at locations that are reasonably accessible for each of the proposed residential dwellings and are not located in a fashion that would require, as would have been in the case in earlier plans, excessive and unacceptable travel distances for residents to dispose of their domestic waste and recycling.

23 It is proposed that there will be a redesign of the stairs and bin lift location accompanied with the redesign of the delivery area so that there is a temporary holding area for waste bins in the basement so that no vehicle travel paths are impeded during the time of the collection of waste.

24 I am satisfied, with appropriate conditions imposing requirements on the body corporate in the future, that that is acceptable.

25 It was Mr Gill’s evidence (and in noting this I should commend him on the frankness with which he approached the subject and his preparedness to confer and reach acceptable arrangements with Mr Turrisi, the applicant’s advising town planner), that the now proposed method of operation of the delivery and loading bay area is acceptable.

26 I do also note his obviously strongly held view that it is not optimal but it is my role in these proceedings to determine whether something is acceptable or not and in that regard I am satisfied, overall, that the waste management arrangements as now proposed have just stumbled over the threshold of acceptability.

27 With respect to the floor space ratio and the Ruzac Street streetscape, I note, first, with respect to the delivery and loading bay, that when that emerged as a proposed method of resolution of both the lack of delivery facilities to the site and as part of the waste removal procedures, it was agreed by the parties that Mr Hume, the court appointed planning expert, should consider and advise on the impact of the proposed loading dock in Ruzac Street and, if and only if he had any difficulties with that in the streetscape, would he be required to give further evidence.

28 I have been provided with a further written report by Mr Hume who indicates that, in the overall context of Ruzac Street and his prior expressed view that the totality of the design to Ruzac Street was acceptable, the addition of a loading dock to that streetscape was also acceptable.

29 I am therefore satisfied, accepting his evidence, that the waste and delivery elements of the Ruzac Street streetscape are acceptably dealt with by the plans that are now before the Court.

30 I turn then to the issue of Units 13 and 14 in the Ruzac Street streetscape. It is, in my view, appropriate to consider the proposed development as it presents to Ruzac Street as being in three elements, each of which must be acceptable in its own right and therefore capable of being supported as a separate element and then in totality, even if all acceptable in their own right, should be acceptable as a totality.

31 I have dealt with the issue of the loading dock and do not need to attend to that further.

32 There are, however, two relevant elements in the Campbelltown Sustainable City Development Control Plan (the DCP). This DCP came into being during the period of these proceedings and discussions with the council about development of the site and it is against that development control plan that I test this development.

33 There are two relevant objectives contained in the DCP that deal with the residential elements presenting to Ruzac Street.

34 The first is contained in cl 3.3 and that is the objective that the massing and scale of new development are complimentary to the existing residential buildings in the neighbourhood and the second, at cl 3.9, has the objective of encouraging quality design multi-dwelling housing that makes a positive contribution to the streetscape and amenity of the neighbourhood.

35 There are a number of observations which I should make about this in general.

36 The first, as correctly drawn to my attention by Mr Seton, is the planning principle established by Roseth SC in Project Venture Developments v Pittwater Council (2005) NSWLEC 191, at para 22, where the Senior Commissioner said:

There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is, capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance though as the differences in these attributes increases harmony is harder to achieve.

37 The second observation I make is that, in the context of the present state of repair and presentation of the existing dwelling on the site fronting Ruzac Street, a well constructed and well landscaped and well maintained development will undoubtedly be a significant improvement for the residents of the area.

38 However, I must consider each of the elements against the tests in cll 3.3 and 3.9 of the DCP.

39 With respect to Units 13 and 14, it is clear from both plan and elevation drawings that those will appear as two separate dwellings. They will stand obviously as a pair of joined dwellings but they will not, in my assessment, be out of character with the presentation both as to width and mass of a number of the other dwellings that front Ruzac Street and which have considerable “across the block” presentations to Ruzac Street.

40 I do not consider, therefore, that the existence of two linked dwellings in that block is offensive to or contrary to either of the objectives in the development control plan.

41 With respect to Units 15 to 17, Mr Hume, in the first of his reports in these proceedings, made the following observation with respect to Ruzac Street:

Ruzac Street is a quiet private residential neighbourhood with its character largely influenced by the largely generous setbacks of dwellings to the street and tree lined footpaths of various species.

42 He then discussed the degree of setbacks around Ruzac Street, particularly the cul-de-sac end, and said:

There is a mixture of one and two-storey detached residences within the street with the residence at 4 Ruzac Street presenting as three storeys to the street.

43 He then concluded, with respect to the plans as they then were with Units fronting Ruzac Street (in general terms as they presently are proposed to be), that the proposal would have a number of elements which positively contribute to the character of the locality.

These include building modulation and height, articulation in roof form, the use of gables and balcony and entrance treatments.

44 He then concludes by commenting, in that section of his report, that the addition of basement car parking will also provide a benefit.

45 The question of Units 15 to 17 is that which has given me greatest concern in these proceedings. They will undoubtedly present as three linked dwellings. They would present to Ruzac Street as quite a large, bulky, single integrated structure.

46 I considered whether it would be possible to require the deletion of the upper floor of Unit 16 (or the deletion of the front half of the upper floor of Unit 16) in order to cure what I consider to be, in the case of that cluster of units, an inappropriate presentation to the streetscape of Ruzac Street - notwithstanding Mr Hume’s consideration of its acceptability.

47 I have concluded that the overall bulk of those three dwellings is, in terms of the objectives of the DCP (and consistent with the planning principle enunciated by Roseth SC in Project Venture Developments), neither complementary to the existing streetscape nor making a positive contribution to the streetscape and amenity of the neighbourhood.

48 I have, however, concluded that it would be appropriate (if the applicant wished to have a consent) to grant the applicant a consent that was subject to the deletion of either Unit 15 or Unit 17 and a redesign of that element of the precinct so that there were merely two sets of two dwellings presenting to the head of Ruzac Street.

49 I have also concluded that, although there will still be a large non-compliance with the requirements of cl 3.9.1(e) for a floor space ratio of the site not exceeding 0.4 to 1, such a redesign, requiring such a deletion incorporating the removal of that one dwelling from that cluster and the further modest lowering of the floor space ratio exceedance above the 0.4:1, would render the totality of the development density for the site acceptable. In reaching this conclusion, I have also endeavoured to put some facultative meaning on the very infelicitously drafted provisions of cl 3.9.1(f) - the bonus provisions of the DCP for additional dwellings and yield on the site.

50 I consider, under the circumstances of reaching that broader conclusion, it is not necessary for me to endeavour to put a precise meaning on the provisions of cl 3.9.1(f), given that it would appear to permit merely one additional dwelling above a floor space ratio yield of 0.4:1 but a dwelling which could be, in the circumstances of the present site, up to 490 square metres in size (which would clearly be an absurdity in the context of the present development proposal).

51 Having concluded that there is, subject to that quite significant amendment, no basis upon which I could refuse the totality of the application on a single ground, I have also considered the other matters which have been raised of concern around the site which, together with the fact that the waste disposal, Ruzac Street and the floor space ratio issues are merely acceptable and not excellent design, might tilt the seesaw in the opposite direction. I have concluded that they would not.

52 I have, however, concluded that there are a number of changes which are required to be made to the plans in order to deal with matters of concern raised by the residents during the course of the proceedings and in their written submissions.

53 Many but not all of those have been canvassed with the applicant during the course of the proceedings and the applicant has indicated in virtually all, if not all, circumstances that the applicant is prepared to accept such modifications or conditions as they arose.

54 It is convenient, in my view, to commence in the north-western or western corner of the development and work round the development in a clockwise direction.

55 The first matter that is of concern relates to the potential for noise impact on the property at 86 Broughton Street, occasioned by the operation of the gates to the development and the driveway that serves them, it being the vehicle exit from the site.

56 There is proposed to be a lapped and capped fence along that boundary, although that is not precisely spelt out on any of the plans as far as I can tell. It is appropriate that that be required in the conditions of consent.

57 It is, however, as I understand it, proposed that there be electrically operated gates to the complex and, to the extent that there may be additional noise impacting on 86 Broughton Street, it would seem to me that at least portion of the fence (in the vicinity of the electrically operating gates for a distance of at least three metres or so back towards 86 Broughton Street as well as immediately adjacent to those electrically operating gates) should be of masonry rather than merely of palings. The plans and conditions should reflect that.

58 The next matters are concerns raised by the managers of the Marcia Women’s Refuge, which is the infill development enfolded within the two elements of the site fronting Broughton Street. There are a number of noise matters raised by them and Mr Hume proposes restrictions on the hours of use of the children’s playground adjacent to Units 18 and 19 and of the pool area adjacent to Unit 3.

59 It is my understanding that the applicant has accepted those conditions and are to be incorporated in the conditions of consent.

60 During the course of the proceedings, I also raised my concerns about security for the women and children that are resident of the women’s refuge - this being a particularly sensitive land use and one for which it is appropriate that this Court have regard to the social impact both of this development and any possible access from this development to the what I would describe as the protected areas of the women’s refuge.

61 I am therefore satisfied that, although not shown on the plans but, I understand, agreed to in anticipation by the applicant, there should be pathway lighting, in a form settled between the applicant and the council (and, I would think, appropriately in consultation with the management of the women’s refuge) on the pedestrian pathways accessing the development from Broughton Street - at least from points adjacent to the corners of the women’s refuge building closest to each of those pathways (that is, in approximate terms only from the plans presently before me, from on the western side the point where there is an RL of 12.50 marked on the women’s refuge side site of the fence and on the eastern side from the point of the head of the very large arrow indicating the direction of travel in that driveway).

62 There should also be a discussion with the management with the women’s refuge as to the adequacy of the lighting along the pathway adjacent to Unit 4, that is between the two pathways which I have just discussed, where the path is, on the plans presently before me, proposed to be lit by only three lights. I am concerned to require that there is adequate lighting along that section of the pathway to ensure that aggressive partners (of the women who are resident in the refuge) would not be tempted or encouraged to scale the fence and cause any damage to those resident in the refuge. I am sure this is capable of resolution with goodwill between the parties.

63 I also put the view that, for similar reasons, there should be closed circuit television surveillance, something not normally required for residential developments – however, as earlier noted, this is a multi-unit residential development next to a particularly sensitive land use.

64 I am satisfied that there should be, as a condition of development consent, a digital closed circuit television system installed that will effectively record movements, between sunset and sunrise, along those paths that are to be illuminated as I have just described and that that footage is to be maintained by the body corporate for a period of at least a fortnight and made available to the police on request.

65 The final matter, specifically with respect to the women’s refuge, arises with respect to the bay window on the upper level of proposed Unit 4. That upper level bay window will overlook part of the swimming pool area of the rear yard of the women’s refuge. It will only do so from its southern panes, that is a third of the panes proposed. I have considered whether it would be appropriate to require these panes to be frosted glass – however, I am of the view that that would be a poor design outcome. The appropriate outcome is to require the deletion of that element of the bay window at the upper level of Unit 4 and leave it retained for the lower level of Unit 4.

66 I now turn to the possibility of noise impact from the children’s playground both on the women’s refuge and the curtilage of St Elmo. I am satisfied that there may be some impact from noise from that area which is designed to be used intensively for communal activities as well as children’s play.

67 There is, at the present time, a modest retaining wall along the eastern, western and southern boundaries (using, conventionally, the Ruzac Street head as being the northern point of the development). This is, on my reading of the plans, presently proposed to be purely for retaining wall purposes. It is, however, appropriate that that be raised to a masonry wall 1.8 m high in order to provide some noise screening for the women’s refuge and for the curtilage of St Elmo.

68 The increased height would be from the point on the southern side of the wall where the retaining wall goes through a right angle to move parallel to the front walls of Units 20 and 21; along the long side of that playground and along the boundary of the playground communal space area where two seats and some planter boxes are marked.

69 I now turn to the question generally of the impact on the curtilage of St Elmo. It is in this regard that I heard the evidence of Mr Rappaport, the court appointed heritage expert.

70 It is important to note at the commencement of my consideration of these issues that it was Mr Rappaport’s uncontradicted evidence that the dominant views to and from St Elmo were the views to the west.

71 It was his professional opinion, expressed after consideration of the ridge heights of the various elements of the development (particularly the ridge heights of proposed Units 18 to 22), that there was no unacceptable impact in a longer distance sense of the views to or from St Elmo by the construction of those elements of the proposal - let alone from the construction of any other elements of the proposal.

72 He expressed a concern about the possibility of noise and overlooking impacts from Units 18 to 21 into the curtilage of St Elmo - although after being pressed on those matters in the witness box, he conceded that, in his view, a combination of the proposed landscaping and the proposed 1.8 m high lapped and capped fence along that boundary with the site would be an acceptable resolution. This fence will now be coupled with the additional acoustic shielding provided by the heightened masonry wall around the children’s playground area.

73 I am satisfied, consistent with the decision of Roseth SC in Super Studio v Waverley (2004) NSWLEC 91, that I should not have regard to landscaping in dealing with overlooking. There is no planning principle as yet that deals with the question of aural privacy protection.

74 I am satisfied though, subject to one minor alteration, that a combination of the finished floor levels of the balconies on the St Elmo’s side, at the upper levels of Units 18 through to 21, are appropriate when compared to the direct and angular site distances and hearing distances from the balconies at those levels on those four units to the curtilage of St Elmo.

75 I so concluded having regard merely to the fence. Consistent with what the Senior Commissioner suggested would be appropriate with respect of visual privacy, I give little weight, with respect of aural privacy, to any benefits which might come from the landscaping. I would therefore not require any amendment to the southern side of the present design of Units 18 to 22.

76 I would, however, require the deletion of the first floor balcony on the southern side of Unit 22 as I am satisfied that the distance between it and the boundary of St Elmo is such that there is a sufficient risk of compromise of St Elmo’s privacy for it to be removed. That would mean that there would be no balconies to the upper level of Unit 22.

77 I turn now to the question of the impact of Units 18 to 22 on the rear yard of 11 Ruzac Street.

78 The balcony from Unit 22 to the north has been deleted. The proposed balconies to Units 20 and 21 have been narrowed so that they are of some 600 mm wide rather than that which had previously had been proposed and they have been shortened on the western side of those dwellings.

79 I am satisfied that a combination of:

• the ten metre separation;
• the relocation of those balconies from the western side of that face of each of those dwellings to the eastern side of that face of those dwellings; and
• an extension of the blade walls shown below to full height at 1.8 metres above finished floor level of those balconies (coming out to the point where they are shown as corresponding with the end point of the westernmost point of the two adjacent structures consistent with the design of ground level dwelling)
will prevent, in my view, the balcony from Unit 20 overlooking any of the area behind the house at 11 Ruzac Street and will provide a very significant difficulty for those who are resident in Unit 21 to do so.

80 The final matter that was of concern to the residents of 11 Ruzac Street is that they will have the mass of five units (broken only by fire stair No 3) across their rear boundary. This is a matter of understandable concern to them.

81 However this presentation is, in my assessment, a necessary consequence of the council’s zoning of the site for multi-unit development and is matter that does not offend against principles of design and planning for such development so as to warrant modification to or refusal of the application.

82 I note that it is proposed that the final version of the plans delete Unit 12 and turn what had been effectively the floor plan of Units 11 and 12 into a single storey dwelling at Unit 11. This has removed the issue of the impact of two, two-storey, joined dwellings sitting on a pediment up to some one metre or more proud of natural ground level and its consequent impact on the private open space of the adjacent dwelling at 5 Ruzac Street.

83 This alteration will also have the useful benefit of a modest decrease in the floor space ratio non-compliance (which will be further improved by the deletion of either Unit 15 or Unit 17).

84 The final matter I turn to arises from the concern that is expressed by the residents that this development would turn itself into a pedestrian shortcut between Broughton Street and Ruzac Street.

85 I raised with the parties the question of whether there ought to be an internal gate somewhere in the vicinity of the north-eastern corner of Unit 10 and the gate in the rear fence of Unit 15 - which gate would only be able to be used by residents of the development.

86 I am satisfied that there is a risk (and an undesirable one, modest though it might be) of shortcuts developing through the site and therefore I am satisfied that such a gate should be installed.

87 The proposed signage suggested by the applicant, at both the Broughton and Ruzac Street entrances, should also include No Through Pedestrian Access signs, together with indications, for each entrance of what Units will have availability of general pedestrian access from that entrance.

88 I have therefore concluded that, subject to revised plans being filed that deal with all of the amendments that I have dealt with in these proceedings and subject to Ms Taylor being instructed by her client that she wishes her client to be given a consent in those terms with the deletion of either Unit 15 or 17, the orders of the Court should be:

1. The appeal is upheld.
2. Development Application 872/2004, as amended, should be granted development consent subject to revised plans and revised conditions being filed; and
3. The exhibits, other than Exhibits 15, C, D and K, should be returned.

Tim Moore

Commissioner of the Court