Architrade v Warringah Council

[2008] NSWLEC 1254

Land and Environment Court

of New South Wales

CITATION:	Architrade v Warringah Council [2008] NSWLEC 1254
PARTIES:	APPLICANT Architrade Pty Limited RESPONDENT Warringah Council
FILE NUMBER(S):	11129 of 2007
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of existing buildings and the construction of a mixed residential/ retail development - natural ventilation - internal noise - layout/ internal circulation - safety/security - landscaping - external appearance - amenity of shops - overdevelopment - contamination
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Warringah Local Environmental Plan 2000 State Environmental Planning Policy No. 65
DATES OF HEARING:	01/05/08, 16/06/08
DATE OF JUDGMENT:	26 June 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr M Staunton, barrister SOLICITORS Sattler & Associates RESPONDENT Ms J Hewitt, solicitor RESPONDENT HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

26 June 2008

11129 of 2007 Architrade Pty Limited v Warringah Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application No. 2004/0943 by Warringah Council (the council) for the demolition of the existing buildings and the construction of a five-storey (plus loft) building comprising five ground level retail shops, 32 residential apartments and two levels of basement car parking for 69 vehicles and strata subdivision at 814 Pittwater Road, Dee Why (the site).

2 The appeal was conducted as an On Site Hearing on 1 May 2008 and the judgement reflects the contents of the Statement of Facts and Contentions and the findings given on site.

The site

3 The site Lot 1 in DP 220220. It is an irregularly shaped lot with a western frontage of 43.675 m to Pittwater Road and an area of 1211.4 sq m. It is currently used as a car hire business and is located at the southern end of the Dee Why shopping strip along Pittwater Road. It is surrounded by commercial/office developments to the north, south and east.

4 The site falls within Locality E9 : Pittwater Road of Warringah Local Environmental Plan 2000 (LEP 2000). The proposed uses are identified as "housing (not at ground floor)" and "shops" which are Category One development in this locality. The Desired Future Character (the DFC) for Locality E9 states:

The future development of the Pittwater Road locality will reinforce the town centre as the focus of regional activity on the Warringah corridor. This will be reflected in the treatment of public spaces, the arrangement of land uses and the scale and intensity of development.

Entry into the town centre will be marked by a building at the southern corner of the intersection of Dee Why Parade and Pittwater Road. The scale and architectural treatment of this building will distinguish it from other buildings and define the edge of the town centre.

The locality will be the focus of office activity and will incorporate a mix of land uses including business uses such as shops, offices, restaurants and cafes at ground floor level with offices and housing on upper floors. The design of buildings is to facilitate the adaptation of upper storey premises for residential or offices uses.

Buildings are to define the streets and public spaces and create environments that are appropriate to the human scale as well as comfortable, interesting and safe. In particular, future development is to ensure that a 4 storey podium adjoins the sidewalk and establishes a coherent parapet line along Pittwater Road. Above the parapet line additional storeys will be set back to maintain solar access to the sidewalks and ensure that the scale of buildings does not dominate public spaces. Building facades are to be articulated in such a way that they are broken into smaller elements with strong vertical proportions and spaces created between buildings at the upper levels to add interest to the skyline, reduce the mass of the building and facilitate the sharing of views and sunlight.

The overall height of buildings is to be such that long distance views of Long Reef Headland, the top of the escarpment to the west of Pittwater Road and the Norfolk Island Pines next to Dee Why Beach are preserved.

Site amalgamation will be encouraged to facilitate new development and enable all carparking to be provided below ground or behind buildings using shared driveways where possible.

Building layout and access are to be in accordance with Map E available at the office of the Council such that shared laneways are established to ensure there is no vehicle access directly from Pittwater Road and the spaces behind buildings combine to form central courts with vehicle access limited to a restricted number of places generally in the location shown on Map E.

5 In the E9 Locality, Built Form requirements are provided for building height (5 storeys or 21 m), building mass (30% of the ground floor floorplate above the topmost storey, 50% for the topmost storey and 70% for the second topmost storey), minimum floor to ceiling heights, build-to-lines (5 m from the kerb for the first four storeys and 9 m above the fourth storey), footpath awnings and car parking facilities. There was agreement that the proposed development satisfied the numerical requirements for the E9 Locality.

6 The relevant parts of LEP 2000 are What matters as considered before consent is granted? (cl 12), How will development of land be controlled? (cl 14) and Can land be subdivided? (cl 21). Part 4 provides General principles of development control.

7 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)).

8 The proposed development has been subject to change since the appeal had been lodged and the issues to be dealt with at the On Site Hearing were limited to:

• natural ventilation,
• internal noise,
• layout/ internal circulation,
• safety/security,
• landscaping,
• external appearance,
• amenity of shops, and
• overdevelopment.

9 Mr Michael Neustein, an architect, addressed the issues for the council and Mr Lawrence Winnacott, a town planner and Mr Stephen Gunns, the project architect for the applicant.

Natural ventilation

10 Mr Neustein states that the natural ventilation to the two central units (units 7 and 8) located at the Pittwater Road frontage on levels 1 to 3 is unacceptable but could be made acceptable through the strategic placement of fin walls on the balcony. Mr Gunns and Mr Winnacott opposed any amendment on the basis that the proposal satisfies the requirements of the Code in relation to natural ventilation as 80% of the units are cross-ventilated. The Rule of Thumb (Pt 03, p 87) in the Code provide for 60% of residential units to be naturally cross-ventilated.

11 I accept the evidence of Mr Gunns and that Mr Winnacott and find that no amendment is required to the proposed development.

Internal noise

12 The issue of internal noise related to the need for a suitable design of the separation walls between units. Following discussions between Mr Neustein and Mr Gunns, a condition was formulated that satisfied the concerns of Mr Neustein.

Layout/ internal circulation

13 Mr Neustein expressed concerned that even though amendments have been provided to create predominantly rectilinear and useable shapes for most of the units, he is still not satisfied that the bedroom of Unit 6 on Level 3 is acceptable. He suggests that these units should be provided with typical furniture layouts to ensure their viability. Mr Neustein further states that the internal corridor on Level 4 has been improved but it is still elongated and twisted and subsequently unacceptable.

14 Mr Gunns states that any change is unnecessary to Unit 6 on Level 3 however Mr Neustein’s concerns can be addressed through a small adjustment to an internal wall. In his opinion, all units are sufficiently large to allow adequate flexibility for the location of furniture. Mr Gunns disagrees with Mr Neustein's assessment of the Level 4 corridor taking into account the difficulty created by the irregularly shaped lot.

15 I accept the evidence of Mr Gunns and find that no amendment is required to the proposed development. While the configuration of the Level 4 corridor is not optimal, it is not a matter that would warrant the refusal or amendment of the development application.

Safety/security

16 This issue related to the level of internal security and following discussions between Mr Neustein and Mr Gunns, a condition was formulated that satisfied the concerns of Mr Neustein.

Landscaping/ open space

17 Mr Neustein presented a plan that indicated additional areas of landscaping within the site. Mr Gunns generally accepted the plan presented by Mr Neustein with the exception of the proposed landscaping on some balconies fronting Pittwater Road. In Mr Gunns opinion, these areas unacceptably impact on the balcony areas of the units and did not necessarily contribute to an improved streetscape.

18 Mr Neustein also expressed concerned at the lack of private open space and communal open space within the proposed development however as each unit satisfied the requirements for balcony size and dimensions and communal open space is not required by LEP 2000, these are not matters that warrant any amendment.

19 I accept the evidence of Mr Gunns and find that no amendment is required to the proposed development.

External appearance

20 Mr Neustein expressed concern that the building did not promote strong vertical proportions as required by the DFC. Also, the barrel roof form promotes the height of the building and unacceptably adds to the bulk.

21 Mr Gunns disagreed on the issue of vertical proportions with Mr Neustein and proposed that the vertical features of the building could be highlighted through the use of different colours. There was a general agreement to this approach provided that it was tightly controlled through conditions of consent. Mr Gunns also disagreed on the barrel roof form, indicating that it did not contribute in any way to those concerns suggested by Mr Neustein.

22 I accept the evidence of Mr Gunns and find that no amendment is required to the proposed development. I am satisfied that the proposed development will appear consistent with that anticipated by the DFC and other developments within the E9 Locality.

Overdevelopment

23 Mr Neustein also stated that the design was fundamentally flawed in that it did not have regard to the potential redevelopment of adjoining properties. In his view, the design should adopt greater setbacks at the upper levels so that it may be viewed in "the round" and therefore potentially provide greater compatibility with the redevelopment of adjoining properties. In his opinion, the current design has the potential to unacceptably impact on the amenity of some units that adjoin the boundaries when redevelopment of the adjoining sites takes place.

24 Mr Gunns and Mr Winnacott disagreed. Mr Gunns states that the proposed development satisfies the requirements in LEP 2000 for build-to-lines. Amendments have been made to units on the southern elevation to reduce the number of bedrooms and thereby reduce any potential amenity impacts, if and when redevelopment does take place. Mr Winnacott notes that the properties to the east are within the E17 Locality that provides for a maximum of three storeys and the proposed design adequately allows for any redevelopment of the properties to be north and south. In his opinion it is reasonable to assume that the redevelopment of any adjoining properties will provide setbacks from boundaries to enable light and ventilation penetration to either residential units or offices.

25 I accept the evidence of Mr Gunns and that Mr Winnacott and find that no amendment is required to the proposed development. There was no evidence to suggest that the adjoining buildings are to be redeveloped and from the site view it appeared that the buildings were in good condition. In any event, I am satisfied that the proposed development adequately anticipates redevelopment if and when it occurs.

Amenity of shops

26 Mr Neustein proposed that the shops should be set back at least 1 m from the boundary to provide increased amenity and a more attractive shopfront. This was opposed by Mr Gunns and Mr Winnacott who saw no benefit in the increased setback because of the location on the heavily trafficked Pittwater Road and at the very end of the southerly section of the Dee Why shopping centre.

27 I accept the evidence of Mr Gunns and that Mr Winnacott and find that no amendment is required to the proposed development.

Directions

28 After the findings were given to the parties at the hearing, Directions were made for the filing and serving of amended plans to reflect the findings in the judgement and also the filing and serving of amended conditions of consent. Leave was granted to restore the matter if there was any disagreement over the drafting of the conditions.

29 A mention was held on 16 June 2008 to address outstanding issues in relation to the facade and colour treatment and contamination (condition 52). The issue of facade and colour treatment was addressed at the mention however the parties were requested to further consider the question of contamination and in the event there was no agreement, each party was to file a short statement on their respective positions on the condition by close of business on 19 June 2008. The dispute over condition 52 remained.

30 The condition states:

52. Site Audit Statement/ Validation Report

Upon completion of the excavation works a Site Audit Statement must be submitted to Council on completion of all works and validation. The Site Audit Statement must be prepared by a Site Auditor registered with the NSW Department of Environment and Conservation (DEC) and must be in accordance with the DEC’s Site Audit Scheme and the protocol outlined in the NSW EPA (1997) document entitled Guidelines for Consultants Reporting on Contaminated Sites, and the NSW EPA (1998) Guidelines for the Site Auditor Scheme. The Site Audit Statement must state that the remediation and validation has been completed in accordance with the above and that the site is suitable for its proposed use.

31 The condition is considered necessary by the council as the report of 4 September 1992 by Groundwater Technology Australia Pty Ltd and subsequent letter dated 20 December 2005 from Otek Pty Ltd referred to a waste oil underground storage tank (UST) and oil/water separator being located on the site. The Otek inspection failed to visually locate the UST therefore there is doubt as to their conclusion of whether or not a UST exists. Also, whether or not conditions on the site have remained the same as detailed in the report. This requires further investigation and remediation, if necessary, as underground storage tanks can leak and the site has been used for vehicle maintenance since the initial report.

32 The applicant maintains that the following condition is appropriate. It states:

52. Upon completion of excavation a suitably qualified contamination consultant shall provide to the certifying authority written confirmation, following a site inspection that the site is suitable for the intended residential and commercial land use.

33 The condition would mean that validation sampling and remediation would only be undertaken if found to be necessary by the contamination consultant. All contamination reporting would be provided to the certifying authority and not just Warringah Council. The applicant’s position is based on the two contamination assessment reports that were included in the development application documents. Within the Groundwater Technology report the following relevant comments are made:

the total lead results from the tank pit samples ranged from not detected (<5mg/kg) to 26 mg/kg which are well below the current EPA (SPCC, 1990) guidelines and are considered to be at natural or background levels .

34 The report concludes (at page 5) that:

all impacted material was excavated from the tank pits during the site demolition and tank decommissioning and was removed from the site.”

35 Further, the report states that

Based on the available data from 3 boreholes (including 1 monitoring well) a soil gas survey, laboratory analysis, inspection of the tank removal, and removal of the impacted soils from the site, Groundwater Technology concludes that there is no remaining significant hydrocarbon contamination and that the site is suitable for redevelopment.

36 Since the time of the Groundwater Technology report, the applicant states that no petrol has been kept on site and vehicles are serviced off-site. The site is only used for washing vehicles.

37 The Otek report states, on the possibility of a remaining UST, that:

OTEK conducted a site inspection at the property on Friday 16 December 2005. OTEK identified an oil/water separator at the location marked “U/G Tank” on a GTA plan dated May 1992. Our inspection failed to find any visible evidence of a waste oil underground storage tank (UST) on-site. Further, there is no oil/water separator detailed on the map. In our opinion we consider that the UST shown in the May 1992 plan is the same item referred to as a small waste oil tank and oil/water separator in the September 1992 report and is in fact a separator only.

38 The Otek report goes on to say:

We therefore conclude that further investigation for and/or removal of these items is not warranted prior to redevelopment of the site. In addition, we expect that following redevelopment of the site as previously described, the site would be shown by a site inspection an/or validation sampling to be suitable for the intended residential/commercial land use.

39 In considering the different conditions proposed by the council and the applicant, I am satisfied that the applicant’s condition is reasonable in the circumstances. The Groundwater Technology and the Otek reports both conclude that the site is suitable for the proposed development notwithstanding the inability to find a UST that was originally shown to be located on the site. In my view, it would be an unnecessary burden on the applicant to undertake the task suggested by the council's condition when there is some doubt as to whether the UST actually exists. In the event that the UST is found then additional work may need to be undertaken by the applicant to address any contamination issues. This would need to be done irrespective of any conditions of this consent.

40 The Orders of the Court are:

1) The appeal is upheld.
2) Development Application No. 2004/0943 for the demolition of the existing buildings on the site and the construction of a mixed residential and retail development at 814 Pittwater Road, Dee Why is approved subject to the conditions in Annexure A.
3) The exhibits are returned.
__________
G T Brown
Commissioner of the Court