Aitken v Blue Mountains City Council

[2006] NSWLEC 391

Land and Environment Court

of New South Wales

CITATION:

Aitken v Blue Mountains City Council [2006] NSWLEC 391

PARTIES:

APPLICANT
James Ashley Aitken

RESPONDENT
Blue Mountains City Council

FILE NUMBER(S):

10353 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Gallery, impact on adjoining properties and 'special housing area', traffic, parking, visual impact on area

LEGISLATION CITED:

Environmental Planning and Assessment Act
Blue Mountains Local Environmental Plan No. 4
Blue Mountains Local Environmental Plan 2005

DATES OF HEARING:

26/04/2006

EX TEMPORE JUDGMENT DATE:

04/26/2006

LEGAL REPRESENTATIVES:

APPLICANT
Ms J Reid, solicitor
SOLICITORS
Pike Pike & Fenwick

RESPONDENT
Mr A Seton, solicitor
SOLICITORS
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

26 April 2006

10353 of 2005 James Ashley Aitken v Blue Mountains City Council

JUDGMENT

1 This is an appeal under section 97 of the Environmental Planning and Assessment Act against Blue Mountains City Council refusal of a development application for a gallery at the site known as 5 Wascoe Street, Glenbrook. The subject site is approximately 18 m wide to the east and west, 53 m on a north-south access, yielding a site area of 948 sq m.

2 The site is generally level, and the current development on the subject land is retail shops, including a real estate agency, café, craft shop and art gallery. The locality is one where there are mixed uses in terms of there is residential development to the west of the subject site, and to the east of the subject site there is a variety or a mixture of development, including a state emergency service site immediately adjoining the subject site, and an Anglican church on the corner of the subject block. Also within the vicinity of the site there is a primary school with approximately 115 pupils, and there is a service station to the north of the subject site to the main highway with also an information centre. The subject site is on the southern side of Wascoe Street, and the rear of the site has access of School House Lane.

3 The statutory controls for the subject site. It was agreed between the experts that the site enjoys existing use rights, and there have been a number of approvals for the subject site which the Court had the benefit of receiving following the proceedings. There are no issues that arise from this apart from an understanding of the context for the development proposal.

4 The provisions of the Blue Mountains Local Environmental Plan, gazetted in October 2005 are to be taken into consideration, as if it was a draft instrument. The savings clause of the Blue Mountains 2005 LEP is contained at cl 6 which states that:

Local Environmental Plan, that is Blue Mountains No. 4 applicable to this site, are as in force immediately before the commencement of this plan apply to a development application that was made, but had not been finally determined before the commencement, as if this plan had been exhibited but had not been made

5 Blue Mountains Local Environmental Plan No. 4 the relevant instrument zones the subject site Residential 2A(1) whereas the draft plan describes the site as ‘living area general’ is known as 2E in the 2005 LEP.

6 There were a number of issues identified by the council in the statement of issues. In summary, the council considers that the proposed development is not in character with the surrounding residential area in terms of the building form and scale of the development, its excessive floor space ratio, and also the council considers that the proposed development is unacceptable and out of scale and does not complement the traditional streetscape character of the surrounding period housing area. The council also raised the issue of traffic and parking, and there was expert evidence provided in respect of traffic. The council also contests that the proposal is not in the public interest having regard to the non-compliances with the draft LEP and in terms of the objections received.

7 By way of background, the matter commenced as an on-site hearing with the parties in November 2005, and the matter was adjourned for amended plans. The Court notes for the record that the applicant has agreed to pay the reasonable costs of the respondent from after the proceedings on-site in December. There were numerous mentions and the Court provided preliminary findings with respect to the plan originally submitted appealed to the Court.

8 The proposal when it first came to the Court was a structure that was raised above the existing parking area at the rear of the site, and it exceeded some 8 m in height from the ground level, and the parking was retained, although with a reduced number of carparking spaces because of the support for the structure.

9 By way of background, the Court indicated that the original proposal, and in particular also its impact on No. 6 Wascoe Street, raised concerns and amended plans were subsequently submitted which became the subject of this further hearing, and following the hearing conditions were forwarded to the Court in March.

10 The issues now raised by council are that the amended plan do not resolve the issues raised initially, and it raises the additional issue of decreased parking. In the council’s opinion, the architectural integrity of the building and the impacts are not contained within the land, and therefore, the proposal in the council’s opinion should be refused.

11 I will say at the beginning of my judgment, and clearly I will state the reasons, that having considered the amended plan, that I am satisfied the proposal is one that is worthy of approval. As I stated, I will go through the relevant provisions as well. The issues in the proceedings focussed on the structure in terms of its height and bulk and fit with the period housing area. The subject site is within the period housing area, and as such, the provisions of cl 61 of the 2005 LEP are relevant, and clauses contained within that include,

“Consent shall not be granted to development involving a building unless the consent authority has considered the extent to which the development is consistent with or enhances the established character and streetscape of the surrounding area with regard to the scale and massing of the building, the use of building materials including colours and finishes, the building form including roof, pitch and proportions, location of buildings on an allotment of land, and to the public street.”

12 The period housing area has been identified in the area in terms of cl 61, and it states,

“Consent shall not be granted within a protected area, that is, this period housing area, unless the consent authority is satisfied by means of a detailed assessment of character that the development complies with a protected area objectives within this clause, and for the period housing area, these are to retain and enhance the traditional streetscape and character of older residential areas, incorporating Victorian, Edwardian, Federation, inter-war or art deco building styles, an important contributor to the town character of the Blue Mountains, and to preserve housing stock that pre-dates 1946 from demolition where these buildings are important contributors to the traditional streetscape character to ensure that new development complements the traditional streetscape. And the character of the surrounding period housing area, in particular, building appearance and use of materials, try and incorporate common architectural elements. Building scale is to be consistent with predominant scale of buildings in terms of height and massing. Location of buildings on the allotment and relationship to the public street shall complement the traditional building pattern.”

13 The character assessment of the period housing area is contained in cl 62, and before granting consent, the consent authority shall consider the detailed assessment which including information as part of the site analysis plan and supporting information, and an explanation of how the proposed development is consistent with and enhances the established character of the surrounding residential.

14 The LEP 2005 has controls in terms of cl 64 for the period housing area. It is also noted that the other relevant control that was cited is the DCP for carparking. It was agreed between the experts, and it is clearly set in law that the existing use rights provisions means that controls/planning provisions as such can not derogate from the existing use rights provisions in terms of s 108 of the Environmental Planning and Assessment Act. I note for the record that since the end of the hearing, there has been an amendment to the regulation for existing use rights, however, it does not effect the planning regime and my assessment of this development application because of the ‘savings provision’ contained within the recent change to the regulations. The site, as I stated earlier, and it is agreed and not contested by the council, does enjoy existing use rights. At the same time, I have had regard to the intent and spirit of the Blue Mountains Local Environmental Plan 2005, and also considered the Blue Mountains LEP No. 4.

15 The subject development application is one that is on a site identified for ‘period housing’, however, the particular site itself is one that currently does not contain period housing, and has commercial uses. The period housing zone is one that should be respected, and clearly the intent of the period housing zone is to ensure that the character and uniqueness of this ‘period housing’ contained within the Glenbrook village area is conserved. However, I am satisfied that the proposed development will not detract from the integrity of the ‘period housing area’. The amended plan that will not be visible from the period housing area apart from the views of the building from School House Lane. It is noted that School House Lane provides the rear access to residential properties that front Park Street which is within the period housing area. It also contains the side boundary of No. 2 Mann Street, and it also contains the side boundary of No. 6 Raymond Street. I am satisfied that the proposed development will not be obtrusive in the ‘period housing area’ nor detract from its unique character. I also agree with the applicant’s expert that the proposed development will be barely visible when viewed from Wascoe Street and the surrounding area, or the highway, and whilst glimpses might be afforded of the building, it will not be obtrusive in the overall landscape/streetscape.

16 Prior to the amended plan, the Court expressed concern about the impact of the proposal given its elevated height. The original proposal was described by the council’s expert Mr Robinson as ‘a water tank on stilts’, and I would agree with that concise descriptor. He considers the amended proposal is more acceptable, even though he considers the building form is ‘alien’. In my assessment the building will also not be highly visible from Wascoe Street, the street frontage, and as I stated, will only be observed in certain parts of School House Lane, and will be obscured by other buildings, in particular the church buildings to the east of the subject site.

17 The evidence given to the Court on behalf of the applicant included that of Mr Robert Staas, heritage architect. He considered the original proposal does not impact on the residential area, and in his opinion it was ‘compatible infill development’. Mr Robert Varger, Traffic Engineer, also provided report to the proceedings on behalf of the applicant, in particular on the availability of on-street parking within the vicinity of the subject site. Mr Robert McGuiness provided town planning expert evidence to the Court for the applicant.

18 Mr Mark Robinson provided evidence on behalf of the respondent council, and Mr R Tully also provided town planning expert evidence to the Court.

19 The Court also had the benefit of joint statements from the experts on the amended plans and the joint planners agreed existing use rights prevail, although, it is noted that Mr Tully gave a detailed assessment of the proposal in terms of the planning controls.

20 I have considered the planning controls for the subject site and whether the proposed development would fit in terms of those controls. The proposal as amended has been significantly lowered and the form of the roof changed, as well as the materials and finishes of the subject building.

21 The proposal use is unique that is, a small gallery with a small viewing platform which then provides patrons the opportunity to view the artworks in a panoramic.

22 The nature of the development could not be accommodated in what would be a traditional building. However, I am satisfied that the proposed building will not impact on the area in that it will not be obtrusive and it will fit with the area in terms of its height and scale.

23 As I stated earlier, the Court did express concern about the impact of the original proposal on No. 6 Wascoe Street, and No. 6 Wascoe Street is identified in the LEP as a heritage site, for the purpose of it’s historical significance as the location of John Howlett’s store, which flourished from the 1880s to the 1920s, but there are no visible traces of the building on the subject site and dwelling erected in the 1950’s now occupies the site. This adjoining subject site at No. 6 could be redeveloped, even though there is an existing substantial dwelling that adds character to the area, but nonetheless in terms of council’s controls it could be demolished and even if redeveloped for other residential development, I am still satisfied that the proposed development would not adversely impact on the future potential of the site. In my assessment the lowering of the proposed building and placing it at ground level with a setback ameliorates the adverse impacts on No. 6.

24 The planners considered that the wall height being reduced to 5.5 m and the setback of over a metre to the side boundary with No. 6 Wascoe Street, and the overall height reduction and the pitch of the roof, reduced the impact of the proposed development. The FSR is also of the proposal reduced to 0.5:1, where it was previously 0.62:1.

25 While the experts agreed in that regard on the above, Mr Tully considers that it does not comply with council’s controls of a maximum height of 6.5 m or the floor space ratio for the living area, and the wall height is also excessive. I also note that No. 6 Wascoe Street, is higher in elevation or topography than the subject site, which also has the benefit of ameliorating the subject building, and I am also satisfied that the building mass is now broken up with different elements as described in the plans Exhibit L. Mr Tully is still concerned that the proposal will be visible from the east, and I do not agree. I consider that the visual impact of the proposal will not be unreasonable on the area, and apart from viewing it from the service lane, it is still unobtrusive building even when viewed from the service lane.

26 The main issue at the end of the proceedings, created by the amended plan, is in respect of the carparking provision. The DCP for carparking was referred to extensively, and in terms of Mr Varger’s assessment the proposal is deficient by some seven carparking spaces, and in terms of Mr Tully’s assessment, the proposal has a shortfall of some eight spaces. I am also satisfied in terms of the surveys that there is adequate on-street parking and other spaces available within the vicinity of the site, such that it will not impact on the residential amenity of the area. And this is of particular importance given the ‘protected housing area’.

27 It could be seen that Mr Varger’s surveys or tables on parking accumulation were not accurate, but at the same time, even allowing for a discrepancy, I am still satisfied that there is more than adequate on-street parking for the shortfall that has been identified by the two experts. Also I have the benefit of a previous survey undertaken for the church identifying significant numbers of parking available on-street.

28 The resident objectors raised concern about the issue of parking and traffic. However, on the evidence before the Court I am satisfied that parking and traffic would not warrant refusal of the development application.

29 When the Court resumed in February, Mr Ting, who is a member of the Chamber of Commerce for Glenbrook, provided evidence to the Court and he expressed concern that the proposed use is contrary to the character of the Glenbrook area and also raised concerns about the traffic and parking associated with the proposal.

30 Ms M Gibson of Mann Street also provided evidence to the Court, and in particular she is concerned about the traffic and parking, and photographs were provided to the Court. She is concerned that the proposal should comply with the council’s controls, that is, the LEP and DCP requirements, and that there should not be a variation to council’s controls.

31 I must consider the development application on the basis of the fact that it does have ‘existing use rights’ in my merits assessment and therefore variations from the planning regime cannot be seen as precedent as in the case of existing use rights such controls strictly do not apply. This does not mean that any adverse impacts should be accepted, however, I am satisfied that the proposed development will continue to fit comfortably within the area without significant or unreasonable adverse impacts on the residential area.

32 The parties provided conditions to the Court and the conditions are such that there is to be a sign displayed at the front of the premises to indicate that parking on site is available with access from School House Lane. The conditions in dispute concerns the period for or when the consent lapses and I am satisfied that there is no reason to limit the five year consent period.

33 With respect to the issues identified by the council, I am satisfied that, whilst the proposed development may not win an architectural award, at the same time this is not the test. It is a functional building and it will clearly read as a functional building and I am also satisfied that, by accommodating a specific use building, it will not adversely impact on the surrounding area with the reduced height and design as shown ion the amended plans.

34 I also make it clear that the amended plan has not been assessed just because of its improvement or ameliorative measures but that I have considered it in terms of its total context and I am satisfied that the plan is one that does warrant approval.

35 Whilst the site is within the ‘period housing area’, I am satisfied that the location of the subject site is one that is transitional in terms of the ‘period housing area’ and the proposed development will sit comfortably with the other non-residential uses to its east and to the north.

36 The impact, on No. 6, I am also satisfied that the amended plan has addressed the concerns of the Court. I do note that the impact on No. 6 was not an issue that was dominant in the council’s statement of issues at the beginning of the proceedings, however, the Court considered it a significant matter to address with the amended plans.

37 By way of description, it is noted that the subject site is approximately 180 m from the Glenbrook Shopping Centre precinct, which is the primary commercial area or commercial zone for Glenbrook proper. However, this does not warrant refusal of this application that has existing use rights for commercial uses on the subject site.

38 The council was concerned about the parking, but as I stated, on the basis of the evidence before the Court, I am satisfied that traffic and parking are not matters that would warrant refusal of the application. Clearly there may be an increase in traffic and demand for parking, but it is within the environmental capacity of the area in terms of off-street parking and on-street parking available.

39 The combination of the use of the art gallery and the café and the existing gift store are ones that may be mutually reinforcing, and the patrons of one may in fact make use of each of those facilities on the site. However, that has not been the basis of my assessment. I have assessed it clearly in terms of the parking demands of the proposal itself and I have not relied upon the mutual use or multi-purpose visitations.

40 Similarly I have not relied upon the fact that there may be a greater peak in demand at weekends when the primary school is not operating, but at the same time I also recognise that there are sports fields and other community services available such as the church within the area that may have demands on the weekends as well. There is also a sharing of car parking in terms of the rear car park on the subject site for the use by the church, and that would continue under the proposal as submitted to the Court.

41 Therefore, on the basis of my assessment, I am satisfied that the proposed development is worthy of approval having regard to its context in the local area and recognising the existing use rights of the subject site.

42 Therefore, the formal orders of the Court are:

1. The appeal in respect of the property known as 5 Wascoe Street, Glenbrook, is upheld.
2. The development application submitted to Blue Mountains City Council and as amended is determined by the granting of consent subject to the conditions contained in Annexure A; and
3. The exhibits, except for the amended plans Exhibit L, and the amended Exhibit 17, are returned to the parties.

___________________

J S Murrell
Commissioner of the Court
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