Ali v Lake Macquarie City Council

[2007] NSWLEC 3

Land and Environment Court

of New South Wales

CITATION:

Ali v Lake Macquarie City Council [2007] NSWLEC 3

PARTIES:

APPLICANT
Dr Osman Ali

RESPONDENT
Lake Macquarie City Council

FILE NUMBER(S):

11662 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :- Demolition of existing dwelling, construction of three residential flat buildings and basement car park, streetscape, advertising, flooding and stormwater, traffic, planning, urban design and public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Lake Macquarie Local Environmental Plan 2004
Lake Macquarie Development Control Plan No. 1

DATES OF HEARING:

26-28/09/2006 and 31/10/2006

 
DATE OF JUDGMENT: 

5 January 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Newport, barrister
Instructed by Ms N Saliba
Of Equity Lawyers

RESPONDENT
Mr G Long, solicitor
Of Lake Macquarie City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Bly

5 January 2007

11662 of 2004 Dr Osman Ali v Lake Macquarie City Council

JUDGMENT

Introduction

1 This appeal relates to Development Application No 4631/2004, which is for the demolition of existing dwelling houses and other structures and the construction of three residential flat buildings comprising 53 dwellings above a basement car park on a consolidated site known as 23 Oakland Street, and 334-336 Lake Road, Glendale.

2 The three residential flat buildings in the proposal are referred to as Buildings A, B and C. Building A fronts Lake Road, is 2/3 storeys in height and its footprint measures approximately 18m x 27m. Building B, the subject of amended plans is the largest of the three buildings. It is positioned between Buildings A and C, is 3/4 storeys in height and measures approximately 24m x 58m. Building C, also the subject of the amended plans, fronts Oakland Street is 2/3 storeys in height and measures approximately 18m x 10m.

3 The single level basement carpark has access off Oakland Street and is mainly located under Buildings A and B. It contains some 77 car parking spaces (including visitor and disabled spaces) plus storage areas and loading docks.

4 The irregular shaped site comprises Lot 1 DP 1081512 and has an area of 6,828 sq m with frontages of 58 m and 32 m to Lake Road and Oakland Street respectively.

5 The surrounding locality is predominantly residential with development generally to the west of the site comprising single dwellings. It adjoins a school to the east and there is commercial development to the southwest at the corner of Lake Road and Main Road with the Glendale commercial and shopping centre further to the south in Lake Road.

Planning controls

6 The site is included in the 2(2) Residential (Urban Living) Zone under Lake Macquarie Local Environmental Plan 2004 ("the LEP"). In this zone residential flat buildings are permissible with development consent. The 2(2) zone provides for medium and high-density housing and its objectives include good-quality design, good access to urban services and facilities and sustainable water cycle management. Site amalgamation is encouraged to facilitate well-designed medium and high-density development. Relevantly here, the site is the result of the amalgamation of five separate lots.

7 Clause 16 of the LEP provides that consent must not be granted unless regard has been given to the vision, values and aims of the Lifestyle 2020 Strategy in Part 2 thereof ("the Lifestyle Strategy) and provided that development is consistent with the relevant objectives of the zone. The aims of the Lifestyle Strategy deal with: future development patterns for land; the reinforcement and strengthening of centres; the provision of local employment opportunities and the promotion of economic development; the development of compact, distinct and diverse urban communities containing a range of housing types; the development of attractive urban settings; and the management of ecological functions and biological diversity.

8 Clause 29 of the LEP deals with building height and requires that for buildings exceeding 9 m in height, development consent is required and consideration is to be given to the proposed building's compatibility with the height of other buildings in the vicinity. Also it must be compatible with the attributes of the site and surrounding lands and as well as the requirements of the LEP and any applicable development control plan.

9 Various provisions of Lake Macquarie Development Control Plan No 1 ("the DCP") are also relevant:

• Section 2.7.1 deals with streetscape and local character and requires that the streetscape, built form and landscape of new development should achieve an attractive setting with clear character and identity and should respond to existing streetscapes in established areas.
• Section 3.4.1 requires that building siting and bulk should produce a consistent streetscape responsive to the existing residential character or the envisaged future character. In this context and in the residential zones of established areas (infill development) the front setback of new development is to be consistent with established setbacks.
• Section 3.4.2 sets maximum building heights of 10 m and three storeys, the intent of this requirement being to ensure that building height is compatible with surrounding development and the locality.
• Section 3.4.5 deals with visual and acoustic privacy for the occupants of new and existing housing, setting standards for the location and separation of windows from one another and from streets and parking areas.
• Section 3.4.6 requires the provision of practical, usable and well located outdoor living space for new housing. Minimum dimensions are specified and fully enclosed and fenced courtyard areas in front setback areas are not permitted.
• Section 3.5.5 requires that residential flat buildings be well sited and achieve a quality living environment for the occupants and residents of surrounding development. In this context relevant performance criteria require building articulation and design elements such as recesses and variation in materials and building form so as to reduce bulk.
  

10 Being a residential flat building, State Environmental Planning Policy No 65-Design Quality of Residential Flat Development ("SEPP 65") was originally said to be applicable but it was deleted by the council from its statement of issues. Despite this, a number of design principles are said by the respondent to be relevant to this application. These include Principal 1 - Context; Principal 2 - Scale; Principal 3 - Built form; Principal 5 - Resource, energy and water efficiency; and Principal 6 - Landscape.

Advertising and resident's objections

11 The application was advertised and at least five objections were received from residents in Oakland Street. The main concerns expressed by these residents involve the capacity of Oakland Street to accommodate the additional traffic generated by this development with particular concerns for pedestrian safety, taking into account the schools and church facilities nearby. Concerns were also expressed in relation to the ability of this street to accommodate construction vehicles and the consequential damage to the street. One resident expressed some concern about the appearance of the proposed buildings. A number of these residents explained these concerns in person when the hearing began on-site.

Council’s decision

12 Whilst the appeal was lodged on the basis of the deemed refusal of the application, the council has since determined that the application should be refused for reasons relating to and including: various requirements of SEPP 65; soil and water management requirements; various requirements of the LEP including the Lifestyle strategy; not considered to be of good design quality; non-compliance with the requirements of the DCP including matters such as scenic values, social impact, car parking and access, servicing, streetscape and character and landscaping; unacceptable traffic impacts; and excessive bulk, scale and height.

The issues

13 The council's statement of issues dated 7 February 2006 identifies issues involving flooding and stormwater, traffic, planning and urban design, public interest and adequacy of documentation. The application has been the subject of much careful examination by various experts and consequential modification including amended plans [Exhibit J]. As a consequence I have decided that these issues can now be reduced to the following:

1. Whether the height, bulk and scale of the proposed development, particularly Building B is unacceptable especially in terms of streetscape.

2. Whether the proposed development has unacceptable intra-allotment and inter-allotment amenity impacts, particularly between Buildings A and B and between Building B and neighbouring existing dwellings to the north in Oakland Street.

3. Whether certain design defects are critical to the application.

4. Whether the traffic concerns raised by the resident objectors are significant.

14 The issue of drainage ceased to be of concern when the drainage experts reached agreement and the modifications recommended by them were accepted by the applicant, although the provision of a very large drainage grate adjacent to Building C became aesthetically problematical. Given its size it is difficult to see how it can be successfully integrated into the landscape design.

15 A further issue that arose during the course of the proceedings was whether the development application itself meets the mandatory submission requirements in SEPP 65. In this regard I would comment that it is a matter of increasing concern that the submission requirements of SEPP 65 and the Court's requirements for architectural plans are frequently being disregarded or only partly complied with. As a consequence some aspects of hearings are made unnecessarily difficult and time and hence money is wasted.

16 In this instance the application is deficient in a number of respects not least of which is the absence of drawings of the proposed development in the context of surrounding development to assist in the streetscape considerations. Also a number of the drawings are inconsistent with one another. Despite this and having received amended plans at the resumption of the hearing and the provision of a SEPP 65 design verification statement, I am now satisfied that I have sufficient information to consider and determine this development application. This has been assisted in no small part by the provision, by the respondent’s architect, of a computer aided modelling presentation.

Expert evidence

17 On behalf of the respondent Council expert evidence was provided by:

• Mr G Vickas-consulting architect.

18 On behalf of the applicant, expert evidence was provided by:

• Mr T Byrnes-architect, town planner and urban design consultant,
• Mr M Smith-environmental engineer.

19 Additional evidence was also provided by the following Court appointed experts:

• Mr C. Henson-traffic engineer
• Mr P Jamieson-civil engineer

20 Mr Vickas and Mr Byrnes prepared a joint report dealing with town planning and urban design issues.

Building height and streetscape issues

21 Mr Vickas and Mr Byrnes agreed that the general scale and massing of Building A was satisfactory, particularly in relation to adjoining development and presentation to Lake Road. Despite the changes detailed in the amended plans Mr Vickas continued to have concerns in relation to Buildings B and C. Relevant to the issue of height, bulk and scale and streetscape these buildings were the subject of significant changes to their external presentation as reflected in the amended plans.

22 Being partly 4 storeys in height, the amended Building B exceeds the three-storey height limit in the DCP and being higher than 9 m exceeds the height controls in the LEP and the DCP. As a consequence careful consideration needs to be given to the building's streetscape impacts, its relationship to surrounding lands as well as its relationship to Buildings A and C.

23 Mr Byrnes supported the changes and was satisfied with the amended Building B, it being appropriately responsive to the applicable planning controls. As a result of its articulation in plan and elevation it will appear less in length and less bulky than previously. Also, given its increased setback and thus its reduced visibility, any possible impacts associated with the fourth story of this building which is appropriately positioned within the site are within reason. Mr Vickas was of the opinion that it is unsatisfactory.

24 More particularly Mr Vickas explained that Building B continues to exhibit serious inadequacies of bulk, massing, number of and height, as well as general architectural presentation. In this context he noted that it would be able to be seen from adjoining properties and from Oakland Street, above and between the existing buildings to the northeast. Together these matters result in the building's failure to meet the streetscape requirements of the DCP, particularly in relation to existing and likely future character. He reached these conclusions notwithstanding the changes to the building which he described as artificial modulation and which exacerbate its largely unarticulated bulk. He was also concerned with the building's relationship to the two-storey school building to the northeast particularly its absence of a transitional form.

25 Conversely Mr Byrnes explained that Building B is articulated in both plan, elevation and in its detailing. Its height, massing and general planning attributes are now adequate and reasonable in the circumstances. More particularly, taking into account the applicable planning controls the presentation of the building from Oakland Street in streetscape terms would be appropriate as would be its scale and form in relation to adjacent properties.

26 Plainly, Building B is a large building being about 58 m long and up to 28 m wide and 3/4 four storeys in height. However when the building is examined in three dimensions, taking into account the articulation reflected by its footprint, the recessive nature of the smaller fourth level (penthouse style), the roof forms and the use of balconies with sliding louvres and various other architectural devices and materials I am inclined to Mr Byrnes opinion as to the satisfactory nature of this building.

27 In terms of its appearance in the surrounding locality, Building B will undoubtedly be observable from the existing dwellings in Oakland Street and from the street between these buildings. However, to the extent that it will be able to be seen from Oakland Street (about 45 m away), even taking into account its four-storey height, it will appear as a large building but it will not appear so large as to make it unacceptable. In this regard I again accept the evidence of Mr Byrnes that the streetscape presentation of Building B will be satisfactory particularly taking into account the bulk and scale of built form that can be anticipated by the applicable zone. There was no suggestion that the building's appearance from Lake Road would be unacceptable.

28 Both the ends of Building B present as three-storeys with the taller elements positioned behind and towards the centre of the building and the site. The south eastern end of the building is positioned about 8 m away from the elevated two-storey school building providing what I accept as being an appropriate transition.

29 In relation to Building C Mr Byrnes was of the opinion that with its increased articulation and modulation its presentation in the streetscape, taking into account its relationship with the entry driveway, is much improved. Conversely Mr Vickas believes that the building continued to be incompatible in the streetscape because of its artificial modulation and its top-heavy design as well as the provision of private courtyards in the setback area.

30 Building C complies with the applicable building height plane comprising setback and height requirements. In its now amended form, it's articulation and modulation results in a satisfactory degree of architectural interest and I accept Mr Byrnes' opinion that, being a largely two-storey building, it will have an appropriate built form in the streetscape. Again, taking into account the requirements of the DCP that the proposal should enhance, respect and respond to the existing streetscape I am satisfied that it sufficiently meets this requirement, taking into account the zoning of the land and the nature of development in Oakland Street generally. I have also taken into account the likelihood that the existing older style development to the southwest in Oakland Street is likely to be redeveloped in due course with buildings up to three storeys in height. For similar reasons the building's setback from the street will be satisfactory, despite projecting further forward than existing development although the courtyards in the setback area are problematical.

31 Whilst not determinative of the streetscape and visual appearance issue, I have taken into account the building's setting comprising existing vegetation (on the north side of the drainage channel) and the proposed landscaping.

32 In all of the circumstances I am satisfied that the intent of the streetscape requirements of the DCP and the requirements for a transition to the envisaged future character would be met by the proposal.

33 Finally, and more generally I am satisfied with the relationship between Buildings A, B and C, taking into account what I accept as being significant distances of separation of built form and building articulation and landscaping opportunities.

Design and amenity issues

34 Whilst there are three lifts providing access from the basement car park into Buildings A and B, there is no such access from the basement to Building C. Instead, for residents to walk between the parking spaces and the storage areas in the basement of Building B to the dwellings in Building C, they need to first use the lift in Building B to access the foyer of that building. They then need to walk from the foyer via the main entry driveway to the ground floor dwellings a distance of about 75 m. The distance is somewhat further to the first floor dwellings that are accessed via an external stair. According to Mr Vickas, the stair is technically substandard and the distances of travel excessive.

35 Disabled access via the path to the southeast and northeast of Building B is even further, this also being of concern to Mr Vickas, compounding his concerns as to disabled access generally, including off Oakland Street and the internal layout of the adaptable unit in Building C.

36 Whilst Mr Byrnes believes the walking distance to be acceptable I agree with Mr Vickas who said that the distances are excessive and unsafe. Plainly it would be easier for these residents to park in Oakland Street, an undesirable outcome.

37 Mr Vickas was concerned that given the close relationship between Building A and Building B, a number of the dwellings in these 3/4 storey buildings would have unsatisfactory levels of privacy mainly in terms of overlooking. These concerns are exacerbated by the number of habitable rooms in the two buildings that would be effectively looking at each other. Mr Byrnes disagreed, explaining that taking into account the permissible density of development of this kind and the extent of separation between the buildings this issue is not critical

38 At their closest the separation between balconies in Building A and bedrooms in Building B is 11.86 m at first floor level and 12.48 m at second floor level. Building B is angled away from Building A and these distances increase progressively to be more than doubled. These minimum dimensions closely approximate the 12 m requirement in AMCORD for buildings up to three storeys. At this location I accept that a different design could have produced a better outcome but this is not critical.

39 Taking into account the separation distances between Buildings A and B, the angled relationship between these buildings and the provision of privacy devices such as adjustable screens I am satisfied that the overall level of privacy between these buildings, taking into account the density of the development overall, will be satisfactory. In time I also accept that the landscaping proposal will assist, notwithstanding that this would, in part, be installed above the basement.

40 Privacy concerns were also raised in relation to overlooking from Building B towards the dwelling houses in Oakland Street. In this regard I have reached the same conclusion, for similar reasons, and also taking into account that these lands are included in the same medium density development zone as the subject site.

41 The proposed drainage grate adjacent to Building C which has an area of 32.4 sq m with a minimum open grate area of 30 sq m will, according to Mr Vickas be visually unattractive and may also be dangerous. I understand that this design was a last minute solution and I would expect that with further consideration and consultation between the engineers and the architects a better solution could be produced.

42 Taking into account that the DCP does not allow courtyards in the front setback areas especially where fences are required for privacy, the present arrangement is inappropriate. Despite this and given that the widening of Oakland Street does not appear to be required by the council I have accepted that the setback of Building C is, in streetscape terms, appropriate. It may be possible for a suitable private open space arrangement to be provided subject to the courtyard areas between the building and the street being able to achieve a satisfactory level of privacy as well as contributing to the building' s landscaped setting. However I expect that to achieve this a building setback in excess of the minimum required by the DCP would be necessary.

Traffic issues

43 The issue of traffic in Oakland Street was relevantly raised by the residents as a matter of concern. However Mr McLaren's consideration of traffic, including a particular examination of Oakland Street resulted in his conclusion that the proposal is supportable taking into account traffic flows, road safety, access design, parking and residential amenity impact considerations. In the circumstances, I accept his expert analysis and would not reject the proposal given his expert opinion.

44 Whilst the council did not press traffic as a matter of concern it may be that with the likelihood of further medium density development in the street that some roadworks are necessary. This should of course be dealt with perhaps by way of a contributions plan under s 94 of the Environmental Planning and Assessment Act 1979 rather than imposing the whole burden on any one particular development application.

Conclusions

45 The proposed development of this site would be the first development of this kind in this particular locality thus beginning the anticipated character transition to medium density housing as reflected by its zoning. This process is assisted by the landowner' s acquisition and consolidation of a number of allotments to produce a significant development site.

46 The site has good access to services and public transport. It will contribute to the provision of a range of housing types and the new residents would assist in the strengthening of the nearby Glendale commercial and shopping centre. For the most part, and despite its numerical non-compliances, the development would be responsive to the requirements of the LEP and the DCP and notwithstanding the character differences with existing older style development, would be appropriate in this location.

47 I have been persuaded mainly on the basis of the evidence marshalled on behalf of the applicant that, in the main, the proposal effectively meets the requirements or intent of the planning controls including SEPP 65 and the Lifestyle Strategy. However, whilst Building C is, but for the courtyard fencing question, essentially reflective of what I accept as being the envisaged future character in this part of Oakland Street, it has fundamental planning problems, especially accessibility and including disabled access generally which have resulted in my conclusion as to the unacceptability of the proposal.

48 Hence whilst the proposal is for the most part satisfactory it has critical flaws and for the reasons given above the development application should be refused.

Orders

49 The orders of the Court are therefore:

1. The appeal is dismissed.

2. Development Application No. 4631/2004 for the demolition of existing dwelling houses and other structures and the construction of three residential flat buildings comprising 53 dwellings above a basement car park at 23 Oakland Street, and 334-336 Lake Road, Glendale, is determined by the refusal of the application

3. Exhibit J is retained

___________________

T A Bly
Commissioner of the Court
Ljr/rjs