Architects Marshall v Lake Macquarie City Council - [2005] NSWLEC 78

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Architects Marshall v Lake Macquarie City Council [2005] NSWLEC 78

PARTIES:
Applicant:
Architects Marshall Pty Ltd
Respondent:
Lake Macquarie City Council

FILE NUMBER(S):
10663 of 2004

CORAM:
Roseth SC

KEY ISSUES:
Development Application :- Planning principle
weight to be given to evidence on aesthetics

DATES OF HEARING: 06/12/2004 to 09/12/2004, 15/12/2004, 21/12/2004, 14/02/2005, 24/02/2005

DATE OF JUDGMENT:

03/01/2005

LEGAL REPRESENTATIVES:
Applicant:
Mr C Shaw, solicitor of Shaw Reynolds
Respondent:
Mr G Newport, barrister
instructed by Mr G Long, solicitor of P Rees

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

1 March 2005

10663 of 2004 Architect Marshall v Lake Macquarie City Council
JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal of a development application to demolish the existing buildings and erect a multiple dwelling housing project containing ten dwellings over basement parking on lots 1 and 2 DP 800421 and lot 306 DP 11537, known as 34-36 Fishing Point Road, Rathmines.

The site

2 The site is on the west side of Fishing Point Road, between the intersections with Burnage Place and Sunlight Parade. It is an amalgamation of three allotments, each with a dwelling house on it. It is irregular in shape, has an area of 2,365m2, a frontage of 31m to Fishing Point Road and a frontage of 6m to Burnage Place.

3 Five allotments, each containing a detached dwelling, adjoin the site. To the north they are 32 Fishing Point Road and 4 Burnage Place. To the southwest they are 8 Burnage Place and 2 Sunlight Parade. The fifth allotment, 38 Fishing Point Road, adjoins to the south. It contains a three-storey house.

4 The locality contains one and two-storey detached houses. The three-storey house on 38 Fishing Point Road is an exception.

The proposal and its history

5 The applicant proposes to demolish the three existing buildings and to erect a multiple dwelling housing project containing ten dwellings over basement parking. Above the ground the dwellings appear to be in three buildings. One, containing four dwellings, faces Fishing Point Road. The second, containing five dwellings, is located in the centre of the site. The third, containing one dwelling, faces towards Burnage Place. Each dwelling has its separate entrance and private open space accessible from the living room. Thus the proposal has the characteristics of a townhouse development, called multiple dwellings in the local environmental plan. It is classified as a residential flat building only because of its continuous basement-parking floor that extends under all three buildings.

6 The applicant lodged the application in December 2003. Following notification, the council received 200 submissions. The applicant lodged the appeal in June 2004. At the time of hearing the council had not determined the application.

7 The Court heard the appeal on four days, 6, 7, 8 and 9 December 2004. On 21 December the Court handed down its preliminary findings on the issues. The parties agreed on directions requiring the applicant to file amended drawings and the council to notify them. The amended drawings were on exhibition until 7 February 2005, at which time the council received 49 further submissions. In order to extend an opportunity to the objectors to be heard on the amended drawings, the Court convened again on 24 February 2005 at Newcastle Courthouse.

Relevant planning controls and policies

8 When the application was submitted to the council, the local environmental plan in operation was Local Environmental Plan 1984 (LEP 84), under which the site was zoned 2(a), a zone in which residential flat buildings were permissible with consent. The maximum permissible Floor Space Ratio (FSR) was 0.5:1.

9 In March 2004 Local Environmental Plan 2004 (LEP 04) was gazetted. The site is now zoned 2(2) Residential (Urban Living) zone. This zone also permits residential flat buildings with consent; however, the LEP does not contain a maximum permissible FSR. The zone prohibits dual occupancy. The first objective of the zone is “to provide for medium and high-density housing”. Clause 11 requires applications that were lodged before March 2004 to be considered as if LEP 04 had been exhibited but not made. It was common ground between the parties that LEP 04 should carry major weight.

10 Development Control Plan 9 – Medium Density Residential Development was in force with LEP 84. It has now been replaced by Development Control Plan 1 (DCP 1). It was common ground between the parties that DCP 1 should carry major weight.

11 State Environmental Planning Policy 1 – Development Standards (SEPP 1) provides for the variation of development standards. The applicant has lodged an Objection to the maximum permissible FSR under LEP 84.

The issues

12 The council’s amended Statement of Issues contains twelve issues. The council’s planning expert, Mr Greg Vickas, grouped them under three headings:

· Compatibility with streetscape and locality (Mr Vickas called this group of issues public realm interface considerations).

· Impact on nearby properties.

· Internal amenity.

13 Two matters do not comfortably sit under the above headings. The first is the proposal’s architectural style or appearance; the second is the SEPP 1 Objection to the maximum FSR in LEP 84. I deal with these under separate headings.

Compatibility with streetscape and locality

The objectors’ evidence on the two site visits

14 The Court visited the site on two occasions: 6 and 15 December 2005 and heard the evidence of objectors. In addition to the objectors who were concerned about the proposal’s impact on their properties (whose evidence is dealt with under the heading Impact below), the Court also heard evidence by residents who do not live close enough to the site to experience direct impact. Their objection related to the conflict they perceived between the proposal’s bulk and the existing low-density character of Rathmines. The submission of the Rathmines Progress Association lists these concerns in detail:

· The proposal will appear bulky from the distance. The buildings should be maximum one to two-storeys.

· The proposal exceeds the FSR in LEP 84. The density is too high.

· There are four balconies at three-storey level.

· The contemporary style is unsuitable for Rathmines.

· Fishing Point Road is unacceptable for access.

· Burnage Place access is narrow.

· The proposal will cause parking and traffic congestion.

· Landscape buffers should be used at side and rear.

· There should be no underground parking.

· Adverse impact on adjoining land.

· Loss of views

· Problems with garbage collection.

15 Fifteen residents expressed their concern about the proposal’s impact on Rathmines generally. Mr P. Vaughan, who lives at 64 Harborne Avenue, said that the proposal was out of character. Mr M Usher, who lives at 7 Lincoln Close, said that the Court should take account of the large number of residents who oppose the development. Mr J Norris, who lives at 22 Fishing Point Road, said that he was concerned about increase in traffic. Mr J Brooks, who lives at 6 The Circlet, said that the proposal did not provide enough parking. Mr K Porter, who lives at Northminster Place, said that the proposal was too urban. Mrs G Kuyltjes, who lives at 2 Burnage Place, was afraid that residents and visitors of the proposal would park in her cul-de-sac. She had doubts that the garbage truck would be able to turn into the driveway.

16 Mr F Downing, who lives at 4 Bayswater Road, said that the proposal would visually dominate the locality and would create congestion. In his view the 2(2) zoning was not appropriate for the site. Mr B Hatfield, who lives at 30 Harborne Avenue, said that medium density development in Rathmines would create social problems. Mr B Saul, who lives at 10 Burnage Place, said that he was concerned about traffic in Burnage Place, especially in relation to difficulties for emergency vehicles. Mr W McArthur, who lives at 43 Cheapside Street, said that he was concerned about subsidence problems. He thought three storeys were too high, but he would have no problem with one or two-storey development. Mr G Geatches, who lives at 44 Fishing Point Road, said that the proposal was not in character with Rathmines and would cause social problems. Mr T Gilmour, who lives at 15 The Circlet, said that he was concerned about subterranean water and future changes by the Body Corporate from private to council collection of garbage. Mr H Hofmann, who lives 43 Fishing Point Road, was against increased density generally. In his opinion Rathmines should be spared medium density development, which should go to other parts of the Shire. Ms J Savill, who lives at 50 Alkrington Avenue, Fishing Point, said that she was concerned about the proposal’s impact on evacuation procedures in case of earthquakes. Mr S Minors, who lives at 85 Rosemary Road, said that there is no capacity in the local schools to cater for additional children.

The objectors’ evidence at Newcastle Courthouse

17 Following notification of the amended application (principally reducing it from three to two storeys), six objectors gave further evidence at Newcastle Courthouse on 24 February 2005. Mr W Thorburn, the President of the Rathmines Progress Association, said that his organisation was still concerned about the proposal’s density and bulk. He mentioned a number of characteristics of the area that indicated that the 2(2) zoning was inappropriate. He pointed to the inadequacy of the parking arrangements and the wrong species proposed in the landscape plans. He agreed, however, that the amended two-storey proposal was preferable to the earlier version.

18 Mr W McArthur, who had spoken at the first site visit, also said that the density was too high, though the two-storey version was preferable to the three-storey one. Mr Mc Arthur projected images on the wall of the Court indicating his concept of the bulk of the proposal. The experts corrected this “photomontage” showing that Mr Arthur’s idea of the proposal’s bulk was greatly exaggerated. Mr B Feehan, who lives at 22 Starboard Close, said that the amended drawings changed little and that roof terraces were inappropriate. Mr M Usher, who had spoken at the first site visit, said that the amended drawings were an improvement. (Mr P Polglase and Ms C Doyle also spoke at Newcastle. Their evidence is noted under the heading Impact below.)

Findings on the objectors’ concerns

19 The main concerns that the residents raised were about traffic, parking, school capacity, garbage collection, mining subsidence, subterranean water, and ability of emergency vehicles to enter Burnage Place,. The council did not embrace these issues and therefore did not bring any expert evidence on them. While I accept that the residents genuinely hold their concerns, in the absence of some substantiation, expert or otherwise, and in view of the council’s not supporting the concerns, I cannot give them major weight.

20 A major theme running through the residents’ evidence was that a medium density housing project should not be built in Rathmines because it would be alien to the character of the locality. Some residents said that the proposal was high, not medium-density. Most of the residents thought that the 2(2) zoning was inappropriate. However, the zoning exists and entitles the applicant to submit and have considered an application for a medium (and even high) density housing project. In turn, I am obliged to consider the application in the context of the 2(2) zone. The zone’s first objective is to provide for medium and high-density housing. Dual occupancy (the form of development so many residents considered appropriate) is prohibited in the zone.

21 I accept that the proposal is denser than the single housing around it and that it introduces a new element into Rathmines. This is not an unusual occurrence where an area has been recently re-zoned. The 2(2) zoning would allow a three-storey development and it has no limits on the permissible density. The height is 8m where a maximum of 10m is permissible. The proposal has less bulk than would be permitted by the controls.

The experts’ evidence

22 The Court heard the evidence of two planning experts: Mr Vickas, who was retained by the council, and Mr Terry Byrnes, who was appointed by the Court. The difference in their opinions may be summarised as follows:

· Mr Vickas and Mr Byrnes agreed that the most important aspect of the proposal was how it looked from Fishing Point Road.

· Mr Vickas considered that, despite the 2(2) zoning, the locality will remain at its current density and height and that few of the other sites will be redeveloped. Mr Byrnes thought that the proposal was the first of numerous proposals that will seek to take advantage of the new zoning. In his opinion, the public hostility to the proposal was due to its being the first redevelopment under LEP 04.

· Mr Vickas thought that the proposal would be visually dominant and disproportionately massive. In his view, “the changes from the original application have reduced the excessive, unbroken length of the development into the site, but these changes have been effectively negated by the close spacing and visual overlapping of building elements, as well as the introduction of third-storey elements” (emphasis added). Further in his report he stated that the proposal’s “overall massing of monolithic, two-storey elements punctuated by third-storey portions rising above in the centre of the eastern elevation will create a strong sense of excessive mass and bulk and scale” (emphasis added). In Mr Byrnes’ opinion, the three-storey proposal exhibited “an acceptable balance between the old and new scales of development”.

· Surprisingly, in view of his strong criticism of the three-storey element in the proposal, Mr Vickas was unenthusiastic about its removal in the amended drawings. He commented: “Although the scale of the Fishing Point frontage has been lowered to two storeys, the amended building has now lost its previous diversity and dynamism.” I note that, when the proposal included three storeys, Mr Vickas did not say that the design had qualities of diversity and dynamism.

· Mr Vickas and Mr Byrnes agreed that the proposal complied with the 10m and three-storey height restriction in DCP 1.

· Mr Vickas and Mr Byrnes agreed that the proposal did not fully comply with the setback requirements of DCP 1, because part of Unit 1 and Unit 4 was set back 2.5m from the side boundary, instead of the required 3m. I did not understand Mr Vickas to object to this non-compliance, as he concentrated more on the impact of the development than the observance of numerical setbacks.

· Mr Vickas and Mr Byrnes disagreed on the interpretation of the building envelope requirement of DCP 1. Mr Vickas thought that the vertical 3.5m of the building envelope should be applied at the setback line, while Mr Byrnes thought it should be applied at the perimeter of the site.

Findings on the experts’ evidence

23 Clause 16 of LEP 04 states that the consent authority must not grant consent for development unless it

· has had regard to the vision, values and aims of the Lifestyle 2020 Strategy expressed in Part 2 of the LEP; and

· Is satisfied that such of the development as is proposed to be carried out within a zone is consistent with the relevant objectives for the zone.

24 I have considered Part 2 of the LEP. The values and aims of the Lifestyle 2020 Strategy are too generalised to be of assistance in assessing this (or any other) application. The relevant part of the vision of the Strategy is in section 5.3.2 of the full document (not reproduced in the LEP), ie “ensuring that development of a greater density than adjoining development respects existing character and amenity, by incorporating a transition area at the interface”. The other parts of this section deal with assessment criteria such as overshadowing and sunlight access. These requirements are in DCP 1.

25 The three relevant of the six objectives of the 2(2) zone are

· to provide for medium and high density housing,

· to encourage development of good quality design within the zone, and

· to encourage amalgamation of existing lots to facilitate well-designed medium and high-density development.

26 Turning to the objectives in reverse order, the last objective is to encourage amalgamation. The proposal amalgamates three sites. It was common ground between Mr Vickas and Mr Byrnes that amalgamation of the site with 38 Fishing Point Road was not necessary. The second objective of the zone is a general one and would apply to the assessment of applications in any zone. The first objective speaks for itself. There was no suggestion that the proposal was not consistent with it.

27 It appears that the major difference between Mr Vickas and Mr Byrnes is the importance each attributed to the zoning. Mr Vickas attributed little weight to it, while Mr Byrnes thought the zoning was a major factor in determining the application. Mr Vickas’ view was based on his assumption that it will not be financially viable to redevelop the properties around the site. I do not think that I can take this evidence into account. The 2(2) zoning exists and has its objectives. In assessing this application, the Court must take into account those objectives, whether redevelopment of other sites will occur this year or in ten years’ time.

28 However, even if I accepted Mr Vickas’ opinion that the locality will not be redeveloped to medium and high-density housing, I would not accept that the scale of development would remain the same. Extensions and additions, including second storeys are likely to occur here as they do in other residential areas. They would increase the existing scale of the locality to a point where a two-storey townhouse development will not be out of character.

29 A theme running through Mr Vickas’ evidence (as well as that of the objectors) was that the third storey of Units 2 and 3 was an alien element in the streetscape and the locality. The amended drawings responded to this criticism and made the proposal more consistent with the streetscape. The height of the proposal is now in the order of 8m, ie 2m below the permissible height. The objectors who gave evidence in response to the amended drawings accepted that this was an improvement, though they did not think it was sufficient to make the proposal acceptable. As I noted above, Mr Vickas did not think that the removal of the third storey was an improvement.

30 Units 1, 4 and 10 breach the side boundary setbacks of 3m required by DCP 1. However, the average setback of Units 1 and 4 is in excess of the required 3m and the reduced setback occurs where there is a blank wall. The setback for Unit 10 varies from 2m to 5.5m, with the average above 3m. The breaches of setback requirements are compensated for and justified.

31 I turn to the experts’ disagreement on the building envelope. I note that page 11 of Part 3.4 of DCP 1 specifically (and, in my opinion, unequivocally) states, “The building envelope extends from the side perimeters of a site”. One of the sketches on page 11 is ambiguous. The other sketches support the building envelope extending from the side boundaries. Since the words are entirely clear, I conclude that the building envelope should be applied at the side perimeters (or boundaries) of the site.

32 I have taken into account the submission by the council’s advocate, Mr Greg Newport, that a planning document such as a development control plan does not need to be expressed in precise language. However, the word perimeter is a simple word understood by everyone. It is unlikely that a professional person drafting DCP 1 would use the word perimeter, when he or she means the line of setback.

33 If the building envelope is drawn extending from the side boundary (as it should be), only minor parts of the proposal are outside it. For this reason I conclude that the proposal substantially complies with the building envelope specified in DCP 1.

Architectural style

34 In Totem Queens Park v Waverley Council [2004] NSWLEC 712 Bly C dealt with the question whether good architectural design justified non-compliance with planning controls. The judgment established the principle that good architectural design does not exempt a building from being assessed for its impact on neighbours and its compliance with the objectives and requirements of any relevant local environmental plan and development control plan.

35 In the current case the question before the Court was whether the architectural style and character of a proposal was acceptable and appropriate for its context. Mr Vickas said that the proposal was architecturally quite different to its neighbours. The residents, who wanted a traditional rather than a contemporary appearance, echoed this view. Mr Byrnes, who had objected to two earlier versions of the proposal (containing, first, flat roofs, and then skillion roofs), declared himself satisfied with the third version containing gabled roofs.

36 Mr Vickas’ and the residents’ criticism of architectural appearance goes beyond the usual planning objections to a building’s bulk and physical impact. It raises the question whether planning control, exercised either by a council or the Court, should extend to influencing the aesthetic appearance of buildings. Should it be concerned with architectural style, for example, whether the proposal should have contemporary or a traditional appearance? The question has long been debated in the wider community. At one extreme is the view that aesthetic control is always wrong and that designers should have complete freedom to express themselves. At the other is the imposition of aesthetic controls that encourage mediocrity, discourage innovation and stifle the occasional flash of genius.

37 For the Court the question can be formulated in this way: what weight should be given to an expert’s opinion about the appropriateness of a building’s style, character, material or colour, as distinct from its height, bulk and density? The question does not admit of an unequivocal answer. Expert opinion on architectural character tends to be subjective. What one highly regarded professional likes, another, similarly highly regarded, dislikes. What, then, are appropriate criteria for assessing subjective evidence of this kind?

Planning principle: weight given to expert opinion on architectural design

38 The weight given by the Court to expert opinion on architectural style, form or character should be tested against two main criteria, ie:

· whether the opinion is mandated by a design code, such as the Residential Flat Design Code or the Burra Charter, or alternatively reflects the subjective preferences of a local community expressed in a local policy, such as a development control plan, and/or

· whether the opinion is a widely accepted professional view, or at least a view held by a sizable group of professionals, rather than one individual opinion.

39 Most design codes and guidelines do not give advice on architectural style. Their content tends to be generalised. For example, such codes may emphasise the need for compatibility with the context of a site, leaving the question open whether or not compatibility requires adopting the architectural style and materials of the surrounding buildings.

40 In contrast, some development control plans are quite specific about the desired architectural character of the area to which they relate. Since these plans have been subject to exhibition and community comment, they should be the starting point from which the proposal is considered. The approach must be consistent with that prescribed by the Court of Appeal in Zhang v Canterbury City Council [2001] 115 LGERA 373.

41 The majority of development control plans, however, are silent on architectural style and character. In such cases the only evidence before the Court is that of one or more architects or urban designers. It is not always easy to decide when an aesthetic opinion represents a widely accepted professional view rather than an individual opinion. However, generally held professional views tend to be expressed in articles, publications or policies of professional institutions. Experts criticising the architectural design of a building should, where possible, refer to these for validation, in order to demonstrate that the criticism amounts to more than a statement that the expert would have designed it differently?

42 Applying the above principles, I find that Mr Vickas’ criticism of the proposal’s architectural style is an individual’s opinion rather than a view shared by the design profession. It is not mandated by a development control plan expressing the subjective preferences of the Rathmines local community. Consequently I do not give it major weight.

FSR

43 The proposal’s FSR is 0.64:1. This exceeds the permissible FSR of 0.5:1 in LEP 84. The applicant has submitted an Objection under SEPP 1 to the development standard. The principal justification is that LEP 04 has removed the FSR control and zoned the site, and the locality around it, for medium and high-density housing. In my opinion, this justification is valid and the Objection is well founded.

44 The council submitted that the Objection was incompetent because it did not deal with the underlying objectives of the standard. I do not think that this is a valid criticism. Under SEPP 1 the Court has to consider whether the FSR standard in LEP 84 is unreasonable or unnecessary in the circumstances. In coming to a positive conclusion, the Court has to be satisfied that granting consent to the proposal is consistent with the aims of SEPP 1. The aim of SEPP 1, put briefly, is to provide flexibility. The circumstance that makes the strict application of a FSR of 0.5:1 unreasonable and unnecessary is that the FSR is no longer in force. The applicant could re-submit the application without an Objection. Future development of the area around the site will not be subject to the FSR standard. I do not think that considering the underlying objectives of the development standard would be useful, since the standard no longer exists.

45 I am strengthened in the above conclusion by the fact that the parties agreed that LEP 04 should be given major weight.

Impact on nearby properties

46 The properties on which the proposal has impact are:

· 32 Fishing Point Road

· 33 Fishing Point Road

· 4 Burnage Place

· 8 Burnage Place,

· 38 Fishing Point Road

· 2 Sunlight Parade,

· 71 Harborne Avenue and

· 73 Harborne Avenue.

47 Mr W Thorburn, who lives at 32 Fishing Point Road (and has also given evidence in his capacity as the President of the Rathmines Progress Association), said that his main concern was being overlooked from the balcony of Unit 1 and the bedrooms 1 of units 5, 6 and 7. Along the common boundary, No 32 has several outbuildings, including a viewing platform from which views of several rear yards in the locality can be obtained. Mr Byrnes and Mr Vickas agreed that the outbuildings would protect the privacy of No 32. Mr Thorburn gave evidence again at Newcastle, to the effect that he opposed the amended drawings, but that they were preferable to the earlier version.

48 Mr L Peacock, who lives at 33 Fishing Point Road, opposite the site, (and who had a spokesperson/carer speaking for him), was concerned about more people parking in front of the driveway of his house making it difficult for ambulances to enter. In addition he feared the loss of his privacy as a result of the second-storey balconies looking towards Fishing Point Road. I cannot take the concern about parking into account, since the proposal complies with the parking requirements of DCP 1. Regarding Mr Peacock’s concern about losing his privacy, this has been overcome by the deletion of the third storey on Units 2 and 4.

49 The owner and/or resident of 4 Burnage Place did not object. Mr Byrnes and Mr Vickas agreed that the absence of an objection did not justify ignoring the proposal’s impact on this property. In Mr Vickas’ opinion, the impact was so bad that it alone justified refusal. Mr Byrnes agreed that the terraces of Units 8 and 9 could overlook No 4. He suggested lowering the terraces by 750mm. The sightline diagram submitted by the applicant indicates that with this amendment No 4 could not be overlooked from the ground floor of the proposal. There would still be overlooking from the upstairs bedrooms. Mr Vickas considered this unacceptable, while Mr Byrnes reasoned that overlooking from upper storeys is an unavoidable characteristic of all residential areas where there are two-storey buildings. I accept Mr Byrnes’ evidence. As regards overlooking from the roof terrace, Mr Vickas suggested a condition that, in his opinion, would overcome the problem. The condition is imposed.

50 Mr G Berwick, who lives at 8 Burnage Place, said that he was concerned about overlooking and the overshadowing of his vegetable garden. Mr Byrnes and Mr Vickas agreed that there would be little overlooking of this property. The vegetable garden, being in the northern side setback, would be overshadowed during mid-winter. This is a highly vulnerable location for it and to keep it in sunshine all year would require a severe curtailing of the development potential of the subject site. I note that most, if not all, of the rear yard of No 8 will be free of shadow, though, of course, that is not where the vegetable patch is. Because of the difficulty of keeping a northern side setback in sunlight, on balance, I do not think that this issue warrants a change in the proposal.

51 The owner or resident of 38 Fishing Point Road did not object. In Mr Vickas’ opinion, the proposal would overlook No 38 to an unacceptable extent. Mr Byrnes said that he was more concerned about No 38 overlooking the site, than the other way. He pointed out that the proposal was 7m to 9m from its boundary, which was much greater than the distance of the three-storey house on No 38 from its boundary. He added that the barbecue on No 38 was under cover and therefore protected from overlooking. In my opinion, the impact on No 38 is minor and would occur with any reasonable development on the subject site.

52 The owners of the three remaining properties were all concerned with loss of water view. Mr T Goodwin, who lives at 2 Sunlight Parade, Ms L Polglase, who lives at 71 Harborne Avenue, and Ms C Doyle, who lives at 73 Harborne Avenue, said that they objected to the proposal’s impact on their view. Mr P Polglase gave evidence at Newcastle, objecting to noise from the development and to the likely drop in the value of his house. Ms Doyle gave evidence on her property and in Newcastle, to the effect that the amended drawings were an improvement, but that the proposal would still take away the majority of her water views.

53 In Tenacity Consulting v Warringah [2004] NSWLEC 140, I established principles against which view impact may be assessed. The first principle was to assess the views to be affected. In this case the view to the water is pleasant and highly valued. Mr Byrnes and Mr Vickas agreed that the proposal would cut out a major section of water view from these properties. In the case of 2 Sunlight Parade, the impact had to be considered against the panoramic view that the living room obtains to the south, so the experts did not think that, on balance, the impact was major. However, for 71 and 73 Harborne Avenue the view loss would be significant and it would be a loss of the major view.

54 The second step is to consider from what part of the property the views are obtained. In this case the view is obtained from the rear, which has more chance of being retained than more vulnerable views across the side boundary. The third step is to assess the extent of the impact. In this case the impact will take much of the central water view away, though it will leave views of the water from the sides as well as most of the land views. I would assess the view loss as moderate to severe.

55 The fourth principle is to assess the reasonableness of the proposal that is causing the impact. A development that complies with planning controls would be considered more reasonable than one that breaches them. In this case, the development is below the height limit. With the removal of the third storey element, it is 2m below the height limit. It covers about 45% of the site, where the controls in DCP 1 permit 70%. Despite the above compliances, the question should still be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on views.

56 The experts agreed that lowering the height of the proposal to two storeys would restore some land view but would not affect the loss of water view. In order tor these two properties to retain significant water views, the development would have to create a view corridor. In my opinion, such a view corridor would have to extend from the front to the rear of the site and would have to be wide. Even with the creation of a view corridor, the impact may remain almost the same, since the view corridor can be effective only if the property is directly behind, which is not the case for 71 and 73 Harborne Avenue. In order to significantly reduce the view impact, it would be necessary to deprive the subject site of almost all development potential. I conclude therefore that the proposal’s impact on views is reasonable. I understand, of course, that this finding does not make it any less disappointing for the residents whose views will be impacted.

Internal amenity

57 Mr Vickas made several criticisms of internal amenity, relating to disabled parking and its connection to the units, the space for garbage trucks and internal overlooking of private open space. The applicant responded by making amendments, eg providing a lift for wheelchairs, enlarging the space for garbage bins and providing privacy screens. My understanding at the end of the hearing was that Mr Vickas was satisfied, if not fully, then at least substantially.

Conclusions

58 The proposal has been the subject of a large number of objections from the Rathmines community. I have read all the objections and listened to the evidence of twenty-four objectors. It appears that to a large extent the objection is to the zoning of the land. However, the zoning exists and the applicant can reasonably expect to submit a proposal within the controls that the zoning imposes.

59 While the proposal will look different from the detached housing around it, this difference will not be so dramatic as to offend people. The most unfortunate consequence of the proposal is that it will significantly reduce water views from some properties; however, those views could be saved only by depriving the subject site of most of its development potential.

60 For the above reasons the appeal is upheld.

Orders

1. The appeal is upheld.

2. Development application to demolish the existing buildings and erect a residential flat building containing ten dwellings over basement parking on lots 1 and 2 DP 800421 and lot 306 DP 11537, known as 34-36 Fishing Point Road, Rathmines is determined by the granting of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 9 and V.

_________________________

Dr John Roseth

Senior Commissioner

Conditions of development consent

Annexure A

Architects Marshall Pty v Lake Macquarie City Council

The reason for the imposition of the following conditions is to ensure, to Council’s satisfaction, the objectives of the Environmental Planning and Assessment Act 1979 (as amended) are achieved:

(a) To encourage:

(i) The proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forest, minerals, water, cities, towns, and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii) The promotion and co-ordination of the orderly and economic use of development of land,

(iii) The protection, provision, and co-ordination of communication and utility services,

(iv) The provision of land for public purposes,

(v) The provision and co-ordination of community services and facilities, and

(vi) The protection of the environment, including the protection and conservation of native animals and plants including threatened species, populations, and ecological communities and their habitats, and

(vii) Ecologically Sustainable Development, and

(viii) The provision and maintenance of affordable housing,

(b) To promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and

(c) To provide increased opportunity for public involvement and participation in environmental planning and assessment.

PRESCRIBED CONDITIONS

(a) The work must be carried out in accordance with the requirements of the Building Code of Australia.

(b) In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance must be entered into.

(c) A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

(i) showing the name, address and telephone number of the principal certifying authority for the work, and

(ii) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and

(iii) stating that unauthorised entry to the work site is prohibited.

Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

(d) Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the following information:

(i) in the case of work for which a principal contractor is required to be appointed:

A. the name and licence number of the principal contractor, and

B. the name of the insurer by which the work is insured under Part 6 of that Act,

(ii) in the case of work to be done by an owner-builder:

A. the name of the owner-builder, and

B. if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.

If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under (d) becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.

Approved Documentation

This development consent incorporates plans and documents referenced and stamped:

a) Development Consent No. 2123/2004

b) Plans Reference:

c) Document Reference:

Details of the development shown in the approved plans and documents referenced are altered in the manner indicated by:

(i) Any notes, markings, or stamps on approved plans or documents;

(ii) Any conditions contained in this consent

(iii) Any minor alterations to the development by the PCA limited to securing compliance with the Building Code of Australia and Australian Standards, that do not change the physical form of the approved development.

Construction Certificate

NOTE

Occupation Certificate

a) on the approved completed form,

b) must be accompanied by the information required by the form,

c) must be delivered by hand, post or transmitted electronically to Council office (facsimile transmission is not acceptable).

Where the Occupation Certificate has been issued by a Certifying Authority other than Council, a copy of the certificate is to be submitted to Council within 7 days from the date of determination.

Commencement of the Use of the Land

Commencement of the use of the land identified in this consent for the purposes approved by this consent, shall not commence until all conditions of this consent have been complied with and a Occupation Certificate has been issued.

CONTRIBUTION TO PROVISION OF SERVICES (SEC. 94)

(a) In accordance with the provisions of Section 94 of the Environmental Planning and Assessment Act 1979 and the Lake Macquarie Section 94 Contributions Plan No. 1 – City Wide (1993), the monetary contributions in the attached Contributions Schedule shall be paid to Council for the purposes identified in that Schedule.

(b) From the date this determination is made until payment, the amounts of the contributions payable under the preceding clause will be indexed and adjusted on:

- 15 August,

- 15 November,

- 15 February, and

- 15 May

(c) The contributions payable will be the amounts last indexed and adjusted in accordance with Clause (b) above. However, if no amount has been indexed and adjusted because the first date for indexation and adjustment has not arrived, the contributions payable shall be those in clause (a) above.

(d) The contributions shall be paid to Council prior to the release of any construction certificate.

The contributions shall be paid to Council prior to the endorsement of the subdivision certificate.

The contributions shall be paid to Council within ninety days of issues of the Notice of Determination.

Stormwater Disposal

Stormwater shall be disposed of through a piped system designed by qualified professional Civil Engineer in accordance with Australian Standard AS 3500 and shall comply with the following:

§ Four (4) copies of the plan shall be submitted,

§ Stormwater detention measures shall be constructed and maintained to ensure that the development does not increase upstream or downstream flood levels,

§ Detention storage shall be calculated and designed in accordance with “Australian Rainfall and Runoff 1987” and the Lake Macquarie City Council guideline – “Handbook for Drainage Design Criteria” and shall conform to the specifications and standards contained in the LMCC Engineering Guidelines.

§ Stormwater harvesting measures shall be constructed and maintained in accordance with clause 2.5.4 of DCP 1 (and supporting guidelines). Stormwater drainage plans shall include details of the harvesting system (eg. rainwater tank and pump details plus reticulation diagrams).

(i) Council, or

(ii) an accredited certifier registered under the Institution of Engineers Australia accreditation scheme,

stormwater drainage works

Parking Areas & Access Ways

FIX DAMAGE CAUSED BY CONSTRUCTION WORKS

Noise - Construction Sites

The operating noise level of machinery, plant and equipment when measured at the boundary of the worst affected residential premises during construction operations shall comply with the following:

(i) Construction period of 4 weeks and under (excluding rain days and drying time).

The L10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the L90 background level by more than 20 dBA.

(ii) Construction period greater than 4 weeks and not exceeding 52 weeks (excluding rain days and drying time).

The L10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the L90 background level by more than 10 dBA.

Time Restrictions

· Monday to Friday, 7.00am to 6.00pm.

· Saturday, 7.00am to 1.00pm if inaudible on residential premises, otherwise: 8.00am to 1.00pm.

· No construction work to take place on Sundays or Public holidays.

Construction Site Vibration

Vibration from construction site operations on surrounding shall comply with AS2670.1 – 2001 and/or Chapter 174 of the NSW Department of Environment and Conservation’s Noise Control Manual.

Geotechnical Report

Topsoil

Topsoil shall only be stripped from approved areas and shall be stockpiled for re-use during site rehabilitation and landscaping.

Stockpiles of Topsoil

Stockpiles of topsoil, sand, aggregate, spoil or other material capable of being moved by running water shall be stored clear of any drainage line or easement, natural watercourse, footpath, kerb or road surface.

(i) Council, or

(iii) an accredited certifier registered under the Institution of Engineers Australia accreditation scheme, and

An application for a Construction Certificate can only be made to Lake Macquarie City Council for all works on existing public roads (in accordance with Council's authority under the Roads Act).

c. the person having the benefit of the development consent has given at least two (2) days notice to Council of the intention to commence works.

Application Fees for Required Certificates
The Applicant shall obtain any certificates as required to satisfy the conditions of this Consent.
For Council to process applications for works on public road, the following fees would be payable:

Construction Certificate $ 2500.00 (inc GST)

Compliance Certificate $ 2500.00 (inc GST)
Applications for these certificates should be lodged on the approved application form and accompanied by the appropriate fee.

Where the development includes construction works valued at $25,000.00 or more, the applicant must pay the Long Service Levy, as detailed in the Building and Construction Industry Long Service Payments Scheme. The Levy must be paid prior to the issue of the Construction Certificate. The Levy may be paid directly to the Long Service Payments Corporation or to Council as agent for the Corporation. The Levy rate is 0.2% of the cost of building and construction works.
The above application fees are subject to change without notice and confirmation should be obtained from Council prior to the lodgement of any application.

Bicycle Parking racks

Bicycle parking racks shall be provided to accommodate bicycles.

Lighting

Lighting of the development shall not project glare onto adjoining properties or roadways.

Landscaping Works

The site shall be landscaped with all disturbed ground being rendered erosion resistant to Council’s satisfaction.

Category 3 Landscaping

Disposal of Excess Fill

Any excess fill arising from the proposed development shall be deposited at a Council approved site. The details of the composition and volume of the fill and the site of disposal are to be forwarded to Council prior to issue of a Construction Certificate.

Consolidation of Lots

Hoardings

Carparking

Car Washing Bay

A car washing bay shall be constructed in the car parking area and driveways so as to be accessible at all times. The car washing bay shall be covered and drained in the manner required by the Hunter Water Corporation.

ENERGY EFFICIENCY - BUILDING ENVELOPE

Energy Efficiency - HWS

The applicant shall install a minimum 3.5 SEDA star rated hot water system in accordance with Council’s Development Control Plan No. 1.

Tree Removal

Excavation & Retaining

Wherever the soil conditions so require, a retaining wall or other approved methods of preventing movement of the soil shall be provided and adequate provision made for drainage. Prior to construction of a retaining wall exceeding one (1) metre in height it will be necessary to obtain Development Consent, an approval for a Construction Certificate and provide plans, specifications and, structural engineers details.

Footpath Unobstructed Access

Throughout the course of building operations on the land, the Builder shall ensure that Council's footpath is kept clear of building materials at all times to allow unobstructed access by pedestrians.

Supporting of Adjoining Building

Filling

The applicant shall arrange for all fill to be placed in accordance with the standards specified in Table 5.1 of AS 3798 – 1990 “Guidelines on Earthworks for Commercial and Residential Developments”.

Backfill

Building Waste

(c) The enclosure or bin shall be regularly cleaned to ensure proper containment of the building wastes generated on the construction site.

Appropriate provision is to be made to prevent wind blown rubbish escaping from the containment.

Demolition

Erosion & Sediment Controls

36. GENERAL TERMS OF APPROVAL – MINE SUBSIDENCE BOARD

Completion of Mine Subsidence Board’s Building Application form, ‘Design Responsibility – Level 3’. (DRL.3)

Architectural Plans must show the location and detailing of articulation/control joints in brickwork to comply with the requirements of the Building Code of Australia and best building practices.

37. WASTE DISPOSAL

Evidence of a private agreement between the developer and a private waste services contractor shall be lodged with Council prior to the issue of any Occupation Certificate. Such agreement shall identify the method of domestic waste collection and method of domestic recycling collection.

WATER RECYCLING

Rainwater storage of 25m3 intended for non-potable uses including irrigation and toilet flushing shall be included as part of the development, as per Whipps Wood Consulting letter dated 9 November 2004.

39. ROOF DECK

The roof decks to Units 5 and 7 are to have continuous planter boxes added to their southern perimeters. The planter boxes are to have a minimum depth of at least 1 metre and outer wall height of 1.2 metres. The sides of the planter boxes are to be solid. Details acceptable to the Council are to be submitted with the construction certificate application.

Contribution Fee Schedule

DescriptionFee Amount

CITYWIDE - Open Space Acquisition - LAND FEE$47,640.00

CITYWIDE - Community Facilities - CAPITAL FEE$4,235.80

CITYWIDE - Recreation Facilities - CAPITAL FEE$5,897.13

CITYWIDE - MANAGEMENT FEE$866.60

_________________
Dr John Roseth
Senior Commissioner

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Citations

Architects Marshall v Lake Macquarie City Council [2005] NSWLEC 78

Most Recent Citation

Throsby v Pittwater Council [2015] NSWLEC 1471

Cases Citing This Decision

7

Hutchens v City of Holdfast Bay [2007] SASC 238

WZ Capital Holdings Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1171

Auchenflower Investments Pty Ltd v Campbelltown City Council [2019] NSWLEC 1652

Cases Cited

2

Statutory Material Cited

0

Totem Queens Park Pty Ltd v Waverley Council [2004] NSWLEC 712

Tenacity Consulting v Warringah [2004] NSWLEC 140

CITATION:	Architects Marshall v Lake Macquarie City Council [2005] NSWLEC 78
PARTIES:	Applicant: Architects Marshall Pty Ltd Respondent: Lake Macquarie City Council
FILE NUMBER(S):	10663 of 2004
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- Planning principle weight to be given to evidence on aesthetics
DATES OF HEARING:	06/12/2004 to 09/12/2004, 15/12/2004, 21/12/2004, 14/02/2005, 24/02/2005
DATE OF JUDGMENT:	03/01/2005
LEGAL REPRESENTATIVES:	Applicant: Mr C Shaw, solicitor of Shaw Reynolds Respondent: Mr G Newport, barrister instructed by Mr G Long, solicitor of P Rees

Construction Certificate	$ 2500.00	(inc GST)
Compliance Certificate	$ 2500.00	(inc GST) Applications for these certificates should be lodged on the approved application form and accompanied by the appropriate fee.