Architecture and Building Works Pty Ltd v Sutherland Shire Council

[2003] NSWLEC 329

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Architecture and Building Works Pty Ltd   v  Sutherland Shire Council [2003]  NSWLEC 329

PARTIES:
APPLICANT
Architecture and Building Works Pty Ltd

RESPONDENT
Sutherland Shire Council

CASE NUMBER:      10842 of       2003

CATCH WORDS:     Development Application

LEGISLATION CITED:
Sutherland Local Environmental Plan 2000

CORAM:        Brown C

DATES OF HEARING:        29 - 30/10/2003

EX TEMPORE DATE:          30/10/2003

LEGAL REPRESENTATIVES

APPLICANT
Mr P Clay, barrister

SOLICITORS
McKees Legal Solutions

RESPONDENT
Mr M Fraser, barrister

SOLICITORS
Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10842 of 2003

Brown C

30 October 2003

Architecture and Building Works Pty Ltd

Applicant

v

Sutherland Shire Council

Respondent

Judgment

1. This is an appeal against the refusal by Sutherland Shire Council (the council) of Development Application No. 03/0889 for the demolition of three existing dwellings and the erection of five separate buildings for seven townhouses and three villas.  A basement carpark is provided with two access points. 

1. The site consists of three separate lots being lots 17, 18 and 19 in DP 35181 and is known as 10-14 Vermont Street, Sutherland (the subject site).  The lots are regular in shape and have a total frontage of 48.65 m to Vermont Street, a depth of 67.055 m, and an area of 3,249 m2.  The subject site slopes from east to west or generally to Vermont Street with a fall of some 15 m.  A number of large rock outcrops occur on the subject site and provide significant changes in levels.

1. The council filed a Statement of Issues containing eleven issues and a number of sub-issues.  A significant concern of the council was the proposal’s impact on the streetscape and the character of the area.  The accuracy of the plans was also raised as an issue and was the subject of further amendments at the hearing, notwithstanding leave being granted on 24 October 2003 to rely on further plans not filed with the appeal.  For expediency, it was agreed by the parties that the hearing should proceed on the limited basis of the streetscape and character issues as these were not significantly affected by the most recent amendments.  In the event that the streetscape and character concerns of the council did not justify the dismissal of the appeal then further attention could be given to the applicant’s more recent amendments.  Conversely, if the streetscape and character issues were found to be of such significance to warrant the dismissal of the appeal then the most recent amendments essentially became redundant.

1. Evidence for the council was provided by Mr Gregory Hansell, a town planner employed by the council, who states that the proposal fails to preserve the scale, amenity and general character of the area.  The basement carpark structure extends over the entire width of the site and rises well above ground level.  No other development in the area has a similar design approach.  He describes this component of the design as readily visible and dominating the streetscape.  Additionally, the townhouse component that is located at the street frontage is essentially one massive building, largely as a consequence of the extensive basement structure.  Overall, he sees the proposal as being totally inconsistent with the prevailing single and two-storey character of dwellings in the street.

1. Mr Michael Lucchitti, an architect, also provided evidence for the council.  He states that the form of the proposal is inappropriate because of the terrace house style development at the frontage.  He supports Mr Hansell’s views that the proposal is fundamentally inappropriate because of its bulk, scale and density, which is not in keeping with the surrounding neighbourhood.

1. Evidence for the applicant is provided by Mr Lindsay Fletcher, a town planner.  He states that the general character of the area will not be dramatically altered as a consequence of the proposed development.  The scale of the buildings is a mixture of one and two-storey buildings, similar to other villa and townhouse developments in the vicinity.  Consequently, the streetscape will remain characterised by detached one and two-storey residential buildings.

1. Further evidence for the applicant was provided by Mr David Chesterman, an architect and town planner.  He supports the comments of Mr Fletcher and based on the many architectural styles that exist in the street, he states that the proposal is not out of character.  In his opinion, the proposal presents as two buildings at the street frontage and with similar massing to other development in the street.

1. The principal planning instrument is Sutherland Local Environmental Plan 2000 (LEP 2000).  Within the Residential 2(a1) zone, townhouses and villas are a permissible use.  Sutherland Draft Local Environmental Plan 2003 seeks to amend LEP 2000 and will have the effect of prohibiting townhouses on the subject site.  As I understand, the draft plan was not seen as being imminent or certain by either party.  Sutherland Development Control Plan - Townhouses and Villa houses in 2(a1) and 2(a2) Residential Zones (the DCP) also applies to the subject application.

1. Clause 30 of LEP 2000 provides special considerations for the  residential zones.  In addition to the objectives of the zone, consideration is to be given to a range of matters.  The relevant matters are “the effect of the proposed development on the quality of the streetscape,” “the cumulative impact of successive developments on the general character of the area” and “the impact of proposed development on adjoining properties in terms of bulk, height and amount of landscaped area.”  Clause 41 provides that a DCP may recommend restrictions on specific development otherwise permitted on the land.

1. The relevant objectives of the 2(a1) zone seek a residential environment “where the scale, amenity and general character of the area is preserved”, “where the streetscape is characterised by detached one and two-storey residential buildings”, and “where the predominantly single dwelling house character of a neighbourhood is not diminished by successive dual occupancy, townhouse or villa developments”.  The DCP has objectives “to ensure that townhouses and villas are compatible in scale and character with the existing housing and do not adversely affect the local environment or the amenity of adjacent residents”, and “to encourage the scattering of townhouses and villas throughout the 2(a1) and 2(a2) residential zones”.

1. Clause 10 on the matter of multi-dwelling controls has the objectives “that the predominantly single dwelling house character of designated neighbourhoods in the Shire are preserved by limiting the capacity of each neighbourhood for villa and townhouse development”, and “streetscapes characterised by predominantly one and two-storey residential buildings on single allotments within a landscaped setting on each side of the road”.  Clause 10 also provides specific controls that limit the amount of townhouse and villa development in the area through the provisions of clause 41 of LEP 2000.  Clause 10.1 states that villa and townhouse development must not increase the number of multi-dwellings to more than 10% of total multi-dwellings of that neighbourhood.  Clause 10.3 provides requirements between villa and townhouse development sites.  There is no dispute that the proposal breached both of the requirements, although there was general agreement that this requirement was not determinative.  Clause 12 under the heading of siting and scale has an objective that development is compatible with the scale, height and siting of the existing residential environment. 

1. A view of the subject site and surrounding area was undertaken with representatives of both parties to allow an assessment of the impact on the streetscape and character of the area.  With the aid of the plans, an estimation was made on the location and form of the building in the streetscape. 

1. In addressing this issue, the council’s planning controls provide a number of requirements.  Without diminishing the intent of each of these controls, collectively they appear to require that any new development should be compatible with the scale and character of the existing housing, and not have a significant impact on the streetscape and character of the neighbourhood.  The planning controls also seek to limit the number of townhouse and villa developments when compared to single residential dwellings.

1. There was general agreement by the experts that the character of the area is predominantly single detached dwellings either single or two-storey.  Dwellings have a regular setback and scattered landscaping.  Two medium density developments are located adjoining the subject site and on the opposite side of Vermont Street. 

1. In balancing the evidence and considering the council’s planning controls, I am more persuaded by the evidence of the council’s experts.  In my view, the massing of the townhouses at the front of the subject site is incompatible with the existing character of the immediate area and street.  The basement carparking podium and the grouping of the townhouses is not a feature found anywhere else in the immediate area.  The massing of this part of the development will be visible from areas around the subject site as it rises with the topography of the land.  Even if this is compared to the existing higher or density developments nearby, these developments present as far more recessive in the streetscape through their more domestic scale and features.

1. While Mr Chesterman and Mr Fletcher highlighted some of the virtues of the proposal, such as a consistent setback, articulation and fenestration to the street elevation, these features do not in my view overcome the sheer physical presence of the townhouses near the street frontage.  I see no issue with a contemporary design per se, but it must reflect the character, scale and be compatible with the detached one and two-storey residential buildings in the immediate area.  The presence of the buildings in the streetscape is further exacerbated by the basement carpark podium, the entrances to the carpark and the walls to provide the stormwater retention system. 

1. I understand the topography of the site can dictate the design approach to a large extent, and in this case this may be responsible for the grouping of the taller and more bulky buildings towards the street.  However, this is not a sufficient reason to dilute the intent of the council’s planning controls.  It is simply a further constraint that needs to be addressed in any design for the proposal.  Overall, the impact on the streetscape and character of the area is of such significance that it would warrant the refusal of the application and the dismissal of the appeal for this reason alone.

1. On this basis and in accordance with the approach adopted by the parties in dealing with these proceedings, the orders of the Court are:

1.The appeal is dismissed.

2.Development Application No. 03/0889 to demolish three existing dwellings and erect seven townhouses and four villas at 10-14 Vermont Street, Sutherland, is refused.

3.The exhibits are returned.

___________________
G T Brown
Commissioner of the Court

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