Auspacific Equity Investments Pty Ltd v Pittwater Council

[2006] NSWLEC 593

Land and Environment Court

of New South Wales

CITATION:

Auspacific Equity Investments Pty Ltd v Pittwater Council [2006] NSWLEC 593

PARTIES:

APPLICANT
Auspacific Equity Investments Pty Ltd

RESPONDENT
Pittwater Council

FILE NUMBER(S):

11147 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Shop top housing, communal open space, acoustic, privacy, internal amenity, solar access, light and ventilation and car parking.

LEGISLATION CITED:

Environmental Planning and Assessment Act
Pittwater Development Control Plan No. 21
State Environmental Planning Policy No. 65
Pittwater Local Environmental Plan 1993

DATES OF HEARING:

13-14/06/2006

EX TEMPORE JUDGMENT DATE:

09/18/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Bingham, solicitor
SOLICITORS
Deacons

RESPONDENT
Mr A Pickles, barrister
Instructed by: Ms L Segal, solicitor
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

18 September 2006

11147 of of 2005 Auspacific Equity Investments Pty Ltd v Pittwater Council

JUDGMENT

This determination was given verbally and it
has been edited prior to publication

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Pittwater Council’s refusal of a development application for the property known as 343-345 Barrenjoey Road, Newport. The council determined the application in December 2005 and consent was refused.

2 The subject site is within the Newport commercial area and is zoned General Business 3(a). The site also has a boundary to Foamcrest Avenue that runs parallel to Barrenjoey Road. Foamcrest Avenue provides access for off-street parking for the Newport retail centre and also contains commercial premises and residential development on the eastern side of the road. The western side of the street is predominantly residential development.

3 The subject site is adjoined on either side by car parking areas that are zoned ‘special uses parking’. Currently on the subject site there is a retail development arcade fronting Barrenjoey Road, and the rear portion of the site to Foamcrest Avenue provides an open car park between the two council car parking areas. The subject land provides vehicular access to these at grade parking areas.

4 The development application for retail space and shop-top housing has been amended since it was initially submitted to the council. The application now before the Court provides approximately 800 sq m of retail space and thirty (30) units. The Barrenjoey Rooad building contains the retail space in an arcade with 14 units above and the Foamcrest Avenue building provides parking for the whole development at basement levels with 16 units over three levels of residential. In total there are nine (9) one-bedroom, six (6) two-bedroom and fifteen (15) three-bedroom units.

5 The car park provides some 100 parking spaces allocated between the residential and the retail uses. The basement parking is provided at different levels and parking for the retail component and the visitor parking for the units is the first two levels and the parking for the residential units is on the third basement level.

6 The development proposed provides for all the units to be oriented to one of the street frontages, that is either Barrenjoey Road or to Foamcrest Avenue. The buildings have zero setbacks to the side boundaries, however, there are side courtyards (side courts) provided to each of the two buildings at intervals along the side boundaries.

7 The proposal presents as a residential building to Foamcrest Avenue with the entrance to the basement parking for the whole development. The height of the building is three storeys above ground to Foamcrest Avenue and three storeys to Barrenjoey Road with retailing at the ground floor and two levels of residential above.

8 The relevant controls are contained in the Pittwater Local Environmental Plan 1993, and as I stated the site is zoned ‘General Business A’ where shop-top housing is a permissible use with consent, and residential flat buildings are not permissible. It is noted there is no question as to whether the development falls under the definition of shop-top housing, it clearly does and accordingly has been assessed as such.

9 The other controls that are relevant to the consideration of the development application is the Pittwater Development Control Plan No. 21, and this development control plan states that it applies to shop-top housing. A provision of the DCP 21 requires that council may consider a variation for shop-top housing in relation to the solar access on sites constrained with orientation for existing and proposed development. The stated outcomes for solar access are that “residential development is sited and designed to maximise solar access during mid-winter … and to minimise the need for artificial lighting. The main private open space of each dwelling and the main private open space of any adjoining dwellings are to receive a minimum of three hours of sunlight between nine and three on 21 June …to at least fifty per cent of the glazed area”.

10 Another relevant provision contained in the DCP 21 relates to visual privacy and the DCP requires “habitable rooms and outdoor living areas of dwelling shall achieve and maintain visual privacy through good design. Dwellings are to be protected from direct overlooking within nine metres”. The DCP states

“the desired character for the Newport locality will remain primarily a low density residential area and medium density housing will concentrate within and adjoining the Newport commercial centre, neighbourhood retail centre and transport nodes where appropriate. Future development within the Newport commercial centre will reflect the seaside village character of the retail strip”.

11 The other principal document under which the Court must consider the development application is State Environmental Planning Policy No. 65 and there are ten principles which the development application must assess under and the accompanying document of the Residential Flat Design Code is also relevant for the assessment of the development application. Submitted with the development application is the required architect’s statement in terms on the design principles enunciated within the State Policy.

12 The Court heard evidence from: the Court- appointed expert, Mr Geoff Baker, a consultant/urban designer architect; the respondent’s town planning consultant, Mr Steven Czerof; the applicant’s urban designer, Mr Rohan Dickson; and also on behalf of the applicant Mr Stephen King, a specialist in solar access and natural ventilation. Mr Graham Pindar also provided evidence on the traffic aspects of the development and the car parking requirements. It is noted at the end of the day the applicant submitted that it would be prepared to amend the plan to provide the shortfall in parking, which was some five spaces, by an additional or partial level in the basement.

13 Given this is a verbal judgment I will say at this point in my judgment that after careful assessment of the application and the complexities in terms of the amenity that would be afforded to the future occupants of the development, and in terms of the development in terms of being being softened by landscaping, I have concluded that the development application is unsatisfactory and the appeal therefore fails.

14 By way of background the Court previously considered a development application for the subject site and the appeal was dismissed for a number of reasons. It was submitted on behalf of the applicant that the current plans now before the Court overcome the reasons for refusal that the Court previously enunciated. On the other hand it was submitted on behalf of the respondent that curiously in many respects the same problems occur for the current development application.

15 One of the major deficiencies of the previous application was the reliance and the sole orientation of a number of units over side boundaries. It is noted in the current application that the units have either a frontage to one of the streets and a side boundary. However in terms of overall amenity I was persuaded by the evidence of Mr Baker, the Court appointed expert, that the proposed development is deficient in terms of future amenity for occupants of the residential units.

16 It is recognised that the site is zoned for General Business and shop-top housing is permissible and the same level of amenity for units could not be expected as for units in residential areas. At the same time reliance on the shop-top housing definition, in particular for the 16 units in the Foamcrest Avenue building, cannot excuse or justify unsatisfactory amenity that would be afforded to the occupants by the lack of the provision of communal open space that furthermore is not balanced or compensated for by the provision of additional private open space.

17 I am also not persuaded that the courtyards (side-courts, or light wells) provide appropriate amenity in terms of the number of rooms facing these courtyards and then also the need for ventilation having regard to the fact that acoustical measures are required to be considered for the building. I also agree with Mr Baker that the distance from the side boundary to the courtyards should be increased to provide sufficient amenity for the occupants of the proposed dwelling units.

18 Mr King considered the application in terms of ventilation and solar access and he is of the opinion that the proposed development is one that does meet the requirements. He concluded in his statement of evidence:

“…in my considered opinion the current amended proposal has been designed mindful of the constraints imposed by a balanced response to the inherent limitations of the site and the resulting zero setback solution is more properly compared to others like it elsewhere where side boundary setbacks for minor bedrooms are treated as light wells rather than courtyards. The outdoor areas proposed in this application exceed the likely amenity of most such light well solutions by a significant degree. The problem of what is the acoustic and visual amenity of light wells is generally not adequately treated in controls but clearly cannot be applied with unusually rigorous expectations to this development.”

19 In Mr Baker’s assessment cross-ventilation is not achieved for a significant number of dwelling units, or natural ventilation could not be achieved for a significant number of the units. Even if I were to accept Mr King’s assessment that natural ventilation is provided at the same time if one has regard then to the issue of acoustic privacy, Mr King’s evidence is that “acoustic privacy can be achieved by the usual architectural solutions of appropriate glazing and window seals…and not greater distances”. As such it appears there would need to be a trade-off as both acoustic privacy between units and ventilation would be difficult to achieve at the same time.

20 In my assessment the subject site in terms of s 79C(1)c is not suitable for the proposed development. Mr King recognised the inherent limitations of the site. The subject site has limitations, that is the Foamcrest Avenue part, in terms of its juxtaposition with adjoining properties and in terms of its elongated configuration to accommodate 16 dwelling units.

21 At the end of the day the amenity afforded to the number of units on the site is not satisfactory and in the plans of the proposed development before me a balance has not been achieved. This is reflected in the amount of open space that is provided in the development for the communal use of the occupants. Similarly in terms of the private open space, which was identified in exhibit H, the larger units often have smaller balcony sizes/ private open space areas than the smaller units and the deficiency in communal open space does not compensate or offset then the limitations in terms of the private open space to those larger three bedroom dwelling units.

22 The setback area to Foamcrest Avenue provides the only communal open space for the thirty units and it is calculated at some seventy square metres and measures at approximately 6.5 by 11 metres. It is also envisaged this setback area be the location that would provide for any communal facilities, whether it be playground equipment, barbeque or outdoor sitting area. It is also noted that this area is to provide for the planting or landscaping of the proposed development.

23 In terms of the DCP provision I am not satisfied that the proposed development will be “softened by landscaping and vegetation” in its presentation to Foamcrest Avenue. By the same token the Court considers that it would be unrealistic and unnecessary to retain the existing vegetation or trees on the subject site and similarly it cannot be expected that the presentation to Barrenjoey Road should provide trees. At the same time I do not consider for the purpose of the landscaped /open space area that it is appropriate to include the setback to Barrenjoey Road that was included in the first assessment report to the council.

24 The size of the side courtyards will not provide in my assessment, “effective landscaped elements” as submitted by the applicant’s expert. Furthermore because of the length of the side boundaries to Foamcrest Avenue these side-courts have a number of bedrooms, admittedly second and third bedrooms as well as service rooms, that rely on these side courtyards for light and ventilation. In commercial areas it is often most appropriate to build to the boundary, and indeed this is appropriate for the Barrenjoey Road side of the subject site. However for the Foamcrest Avenue site the side-courts are of an insufficient size to achieve appropriate separation, acoustic privacy and ventilation to a large number of rooms. In this regard I am persuaded by Mr Baker’s evidence and this is a significant reason as to why the development application fails.

25 On the issue of the height of the proposal to Barrenjoey Road I do not consider this is a matter that would warrant refusal of the application. It is noted the retail ground floor level is set by the flood policy and the proposed three storeys building in the Court’s assessment is compatible in the streetscape.

26 There was a great deal of discussion during the proceedings about the issue of solar access and the Court was assisted by a computer model provided by Mr King. In the final analysis the number of units that qualify for the three hours of sunlight required under SEPP 65, which is a less stringent control than the development control plan, is marginal and if it were the only issue in these proceedings it would not be fatal to the application. I have considered the inclusion of skylight monitors to the units that are deficient in terms of solar access, however, I agree with Mr Baker that monitors or skylights should be considered as a supplementary form of affording greater amenity for dwellings but should not be relied upon in terms of providing the minimum requirement of solar access to dwellings.

27 From my assessment above the application fails because the proposed development would not provide a satisfactory level of overall amenity for future residents. This is not an inner city location and the application must be assessed against the relevant controls, including the desired character of the locality and SEPP 65 that includes shop-top housing. For the Foamcrest Avenue building that contains 16 residential units, as described in the statement of environmental effects, it will read as a residential flat building in the streetscape and in my assessment the amenity afforded to future occupants should be more commensurate with a residential building. Having said this I am fully aware that I must assess the development application as shop-top housing, however even assessing it as shop-top housing in terms of council’s DCP, and in particular in terms of SEPP 65 and the residential flat design code, the development application does not satisfy these requirements.

28 Under SEPP65 the design quality Principle number 3 on built form states:

“Good design achieves an appropriate built form for a site and the building’s purpose, in terms of building alignments, proportions, building type and the manipulation of building elements.
Appropriate built form defines the public domain, contributes to the character of streetscapes… and provides internal amenity and outlook.”

29 Principle 7 on amenity states:

“Good design provides amenity through the physical, spatial and environmental quality of a development.
Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space,…”

30 Assessing the application against the good design principles I am not satisfied that the proposed development is acceptable. In this regard I am persuaded by Mr Baker’s and Mr Czeref’s evidence that the amenity afforded to future occupants is not satisfactory.

31 The landscaping requirement for shop-top housing in DCP 21 requires a minimum landscaped area of twenty per cent of the site or thirty-five square metres per dwelling. In Mr Baker’s report he also quantifies the requirement for the amount of landscaping that is required and suggests how communal open space could be provided at a podium level between the buildings or on the rooftop. I agree with his assessment that there is no reason as to why this development even though it is in a commercial centre should not provide usable communal open space. The Code does not define open space area and in terms of which area should be allowed to be included in open space, it is clear that whether one includes planting on balconies or not, the deficiency in the proposal is so significant that the proposal does not warrant approval.

32 With respect to the side boundary courtyards and separation from adjoining properties, once again as Mr Baker said, “this is a complex and difficult issue but at the core of the case”. It is noted in the amended plan that the length of the courtyards were increased and the width to the side boundaries of the courtyards were increased such that they were a minimum of nine metres and four metres generally although in some parts they measure three metres in width. Mr Baker refers to the Residential Flat Design Code for building separation and the rule of thumb for separation distances and on page 28 the code state::

“For buildings over three storeys, it is recommended that building separation increase in proportion to building height to ensure appropriate urban form, adequate amenity and privacy for building occupants”.

33 In terms of the Code, clearly the development is not over three storeys but in terms of the setbacks to the side boundary, the four metres is not considered appropriate in terms of the rooms that rely on their amenity from the court or light well areas. Mr Baker comments that

“the proposal relies heavily on the use of side courtyards to provide light and air to apartments. This strategy has implications for a number of issues, primarily related to the internal amenity of the units which rely on the courtyards for cross- ventilation and daylight.

34 In the Newport commercial centre the zone clearly anticipates lot line development. This is generally the case with existing retail commercial buildings along Barrenjoey Road and is the most appropriate form of development for strip retail environment. Mr Baker states that the subject site could be developed with rows of units facing the street. With respect to the side courtyards Mr Baker also makes recommendations that “…in terms of building B, the court is three storeys deep and there should be six metre to the boundary, and for the lowest two floors, four and a half metres. He also suggested that there be a qualified and suitably experienced acoustic engineer to determine how the issue of side courts and openable windows can be resolved to provide acceptable acoustic performance.

35 Mr Dickson commented that a six metre setback is not possible as it will have a debilitating effect on the overall design of the development and this may in fact may be the case for the current design. However the setbacks to the side boundaries are not the only reason as to why the application fails but it is in terms of the overall amenity that would be afforded to the residential units including the lack of open space in terms of the requirements in council’s development control plan and that landscaping also be provided to soften developments. In particular the Foamcrest Avenue part of the site, that contains the majority of the units, requires a design solution that more sensitively considers future amenity of the units.

36 In terms of the noise from the adjoining car parks, this is not a matter that I have needed to take into consideration in terms of my assessment of this development application. Clearly the development of the adjoining sites for car parks would have to provide appropriate ameliorative measures but one cannot ignore the fact that this is a development site for the Foamcrest Avenue portion, which has on either side of it, a special uses parking zone. At the same time whilst that cannot limit the development of this site, the internal amenity for the residential units cannot be compromised without adequate setbacks and without adequate communal open space.

37 The council contests in its statement of issues that “the development is of poor design and will not provide adequate amenity for future occupants, that is the open space areas, the size and inadequate communal facilities and also the insufficient landscaping to soften the built form does not relate to the scale of the development proposed…”. And in my assessment above I find the application also fails on these grounds. On the issue that “the development is inconsistent with the desired future character of the seaside village of Newport”, there is very little guidance in terms of what is meant by this phrase in the council’s DCP 21. But in my assessment I must also have regard to the other provisions in the DCP in terms of guiding what may be the future character contemplated by council, and the proposal fails to satisfy these.

38 Whilst there was reference made to the previous development application and the Court’s judgment in those proceedings, and it is noted that the applicant requested that I also assess this appeal, I must assess this application on its own merits and not on the basis of the issues in the previous appeal being addressed.

39 This is a case where there are a number of finely balanced issues but in my overall assessment in considering not just the separate issues but in combination the proposal is not one that balances the deficiencies to warrant an approval of the subject development application.

40 Accordingly on the basis of my assessment above the formal orders of the Court in this matter are:

(1) The appeal, in respect of the property known as Nos. 343-345 Barrenjoey Road, Newport, is dismissed.
(2) The development application, submitted to Pittwater Council and as amended, is determined by the refusal of consent.
(3) The exhibits except for A, E and G are returned to the parties.

___________________

J S Murrell
Commissioner of the Court
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