Basemount v Baulkham Hills Shire Council

[2004] NSWLEC 13

Land and Environment Court

of New South Wales

CITATION:	Basemount v Baulkham Hills Shire Council [2004] NSWLEC 13
PARTIES:	Basemount Pty Ltd and Gaofind Pty Ltd Applicant Baulkham Hills Shire Council Respondent
FILE NUMBER(S):	11017 and ; 11137 of 2000
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- Consistency of decisions weight given to rrezoning impact on streetscape SEPP 65
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Roads Act 1993
CASES CITED:
DATES OF HEARING:	01/12/03 to 03/12/03
DATE OF JUDGMENT:	01/28/2004
LEGAL REPRESENTATIVES:	Mr C Leggatt, barrister instructed by Mr J Strati of Avendra Singh Strati & Kam Lawyers Mr P Tomasetti, barrister Ms S Duggan, barrister instructed by Ms A Hemmings of Corrs Chambers Westgarth

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11017 of 2000
11137 of 2000

Roseth SC

28 January 2004

Basemount Pty Ltd and Gaofind Pty Ltd

Applicant

v

Baulkham Hills Shire Council

Respondent

Judgment

Introduction

1 These are appeals against the refusal by Baulkham Hills Shire Council (the council) of two development applications. Appeal No 11017 of 2000 (the Nos 11-13 application) is in respect of an application to erect two residential flat buildings containing 42 dwellings on Nos 11 and 13 Garthowen Crescent, and Nos 292, 294 and 296 Old Northern Road, Castle Hill. Appeal No 11317 of 2000 (the No 9 application) is in respect of an application to erect two residential flat buildings containing 34 dwellings on No 9 Garthowen Crescent and 286A, 288 and 290 Old Northern Road, Castle Hill.

History of the application

2 The applicant lodged the Nos 11-13 application on 14 September 2000 and the No 9 application on 23 October 2000. Following notification and the receipt of a large number of objections, the council refused the Nos 11-13 application on 16 February 2001 and the No 9 application on 22 February 2001. The applicant lodged appeals against the two deemed refusals (as they then were) with this Court on 25 October 2000. Commissioner Murrell heard the matter on 12 days between 15 August and 5 November 2001. She upheld both appeals on 15 March 2002. The council appealed against the decision under s56A of the Land and Environment Court Act 1980. On 2 October Pearlman J upheld the appeal and referred the matter to Commissioner Murrell. The council appealed to the Court of Appeal against the part of Pearlman J’s decision that referred the matter to Commissioner Murrell. The Court of Appeal upheld the appeal on 18 July 2003 and ordered that the matter be re-heard by another Commissioner.

3 The proposals that are now before the Court are similar to (if not the same as) those heard in the first merit appeal. The applicant’s advocate, Mr C Leggatt, submitted that there is a public benefit in the Court’s decisions being consistent. Hence my decision should be consistent with Commissioner Murrell’s. While I agree that there is a benefit in consistent decisions, in this case the Court of Appeal’s judgment (ordering a fresh look at the proposals) overrides any other considerations for consistency. I have therefore avoided reading Commissioner Murrell’s judgment. I am aware that she gave consent to the proposal, that she imposed a condition for vehicular egress to Old Northern Road for the Nos 11-13 application and that it was that condition that was the subject of the two subsequent appeals. I do not know what evidence she had before her, who the advocates and experts were and what reasoning led to her decision. I deal with the matter as if it came to the Court for the first time.

The site

4 The site of the Nos 11-13 application is the amalgamation of two allotments facing Garthowen Crescent (ie Nos 11 and 13) and three allotments facing Old Northern Road (ie Nos 292, 294 and 296). The total area is 4,834m2. The site of the No 9 application is the amalgamation of No 9 Garthowen Crescent and three allotments facing Old Northern Road (ie Nos 286A, 288 and 290). There is a 12m fall from Old Northern road to Garthowen Crescent.

5 Old Northern Road is a busy six-lane arterial road, classified by the Roads and Traffic Authority (RTA) under the Roads Act 1993. Garthowen Crescent is a quiet residential street, with mainly single-storey houses and one town house development. At the bend of the crescent, facing 11 Garthowen Crescent is the historic property ‘Garthowen’, a Victorian house in a lovely half-acre garden. Along the west side of the site is Strang Lane, a pedestrian path connecting Garthowen Crescent with Old Northern Road. The Castle Hill town centre is only a few hundred metres away, though it is not visible from most of Garthowen Crescent.

The proposal

6 For the Nos 11-13 application, the applicant proposes to erect Buildings A and B containing 42 dwellings over basement parking for 91 cars. In this application Building B faces Old Northern Road and contains four residential levels over two levels of basement carpark with access from Garthowen Crescent and with egress to Old Northern Road. Building A faces Garthowen Crescent. It is 50m long and two storeys high over one level of basement carpark.

7 For the No 9 application, the applicant proposes to erect Buildings A and B containing 34 dwellings over basement parking for 77 cars. In this application Building A faces Old Northern Road and is four-storeys over two levels of basement carpark with access from and egress to Garthowen Crescent. Building B faces Garthowen Crescent. It is 25m long and is two storeys high. There is no carpark under Building B.

Relevant legislation, planning instruments and policies

8 Local Environmental Plan 1991 (LEP 91), when it was made, zoned this site Residential 2(a), a zone that permitted residential flat buildings. This zoning was in force in September and October 2000 when the development applications were lodged. Clause 9(2) of the LEP provides that a proposal must be consistent with one or more of the aims and objectives of the plan or one or more of the objectives of the zone in which it will be carried out.

9 In November 2001 Amendment 85 amended the LEP. The amendment changed the zoning of the site from 2(a) to 2(a2), a zone in which residential flat buildings are prohibited. Amendment 85 contained cl 45, a savings and transitional provision to the effect that applications lodged and not determined before the amendment should be determined as if the amendment had not been made.

10 Draft Local Environmental Plan 2003 (draft LEP 2003) has been exhibited and must therefore be taken into account. It retains the 2(a2) zoning for the site. The new provision in the draft LEP that is relevant to this case is that a proposed development must be consistent with at least one aim and objective of the plan and not be contrary to the objectives of the zone within which it will be carried out.

11 State Environmental Planning Policy 65 Design Quality of Residential Flat Development (SEPP 65) applies to this proposal in respect of cl 30(2).

12 Development Control Plan 23 Apartment Buildings (DCP 23) was adopted in May 1998. The council amended the DCP in October 2000, November 2001, May 2002 and July 2003. The numerous amendments of the DCP raise the question of which version should be applied to this application. The applicant accepts that the October 2000 version applied. The council contends that an application lodged in 2000 and assessed three years later should reflect the council’s current requirements, not those of three years before.

13 Both submissions have some validity. The result of successive amendments of the DCP was that each version became more stringent and allowed less development than the one before. Any amendment reflecting changes in the DCP would have reduced the amount of development, so it is unlikely that the council would have objected to it on the basis that it is not the same development. Nevertheless I have accepted the applicant’s position that the 2000 version of the DCP applies to this development. The matter was complicated by the fact that the council’s evidence on compliance with the DCP appeared to be based on the current DCP.

14 To avoid unfairness to the applicant, I have placed no weight on the proposals’ non-compliance with the current version of the DCP. On the other hand, I do not think that compliance with a three-year old version should be regarded as a major factor in favour of the applications. For this reason the DCP is not fully dealt with in the judgment.

The issues

15 The council submitted a Statement of Issues containing 13 issues. At the beginning of the hearing the council’s advocate, Mr P Tomasetti, reduced these to the following six:

· Should the proposals be approved given that residential flat buildings on and around the site are now prohibited?

· Are the proposals compatible with the existing and likely future character of the area?

· Are the proposals of good design with regard to the principles set out in SEPP 65?

· Is the proposed egress for vehicles from the Nos 11-13 application to Old Northern Road acceptable?

· Is the loss of trees acceptable?

· Is the impact on the heritage item of ‘Garthowen’ acceptable?

The relevance of the change in zoning

16 The Court must take into consideration three planning instruments:

· LEP 91 as it existed in 2000 when the applications were made and residential flat buildings were permissible on the site;

· Amendment 85, or the current LEP 91 (which prohibits residential flat buildings on the site and allows townhouses), and

· the exhibited draft LEP 2003, which also prohibits residential flat buildings and allows townhouses.

17 The council’s advocate, Mr P Tomasetti, submitted that, in view of Amendment 85 having been made more than two years ago, I should give determinative weight to the prohibition of residential flat buildings in the current LEP 91. I do not accept this submission. Giving determinative weight to the rezoning in Amendment 85 would require giving no weight at all to the savings clause in the same instrument. The authors of Amendment 85 cannot have intended this.

18 In the submission of the applicant’s advocate, Mr C Leggatt, the effect of the savings clause is that I should give no weight at all to the change of zoning. I do not think this is correct either. The savings clause renders the apartment buildings proposed in these applications permissible, but it does not change the fact that future redevelopment on nearby sites will be to townhouses and villa homes and not to apartment buildings. The future character of the surrounding area is of great importance in assessing how these applications fit into their context.

19 I note that cl 9(2) of the current LEP 91 requires that a development be consistent only with one or more of the aims and objectives of the plan or one or more of the objectives of the zone within which it will be carried out. I am at a loss how to interpret this clause. Taken literally, it means that as long as a proposal is consistent with one aim of the LEP, it does not need to be consistent with any of the zone objectives. Alternatively it suggests that as long as a proposal is consistent with one zone objective, it does not need to be consistent with any other zone objective. I do not think that this can be a proper interpretation of cl 9(2). The relevant objectives of the 2(a2) zone should not be disregarded, otherwise why have them?

20 The relevant objectives of the 2(a2) zone are objectives (b) and (c). Objective (b) aims to ensure that building form (including alterations and additions) is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment. Objective (c) requires development to

(i). be compatible with adjoining structures in terms of elevations to the street and building height, and
(ii). have regard to the privacy of existing and future residents, and
(iii). have regard to the transmission of noise between dwellings, and
(iv). minimise energy consumption and utilises passive solar design principles, and
(v). retain significant vegetation, and
(vi). incorporate landscaping within building setbacks and open space areas, and
(vii). incorporate adaptable housing to meet the needs of people with disabilities.

21 The effect of the change of zoning is that redevelopment around the site will be to town houses and villa homes at about half the density permitted for apartments. The future character of Garthowen Crescent will be a mixture of detached houses, villa homes and townhouses. An example of the latter already exists in the Crescent.

22 The character of Old Northern Road is quite different to Garthowen Crescent. Old Northern Road is a busy and noisy arterial road, not a residential street. The streetscape is less consistent in scale and character. Many properties have high walls along the boundary to protect them from the traffic noise. Although there are no large buildings there now, large buildings are more easily absorbed into the visual scene than in Garthowen Crescent.

23 I conclude therefore than an acceptable proposal may contain apartment buildings facing Old Northern Road that are of substantial bulk. The buildings fronting Garthowen Crescent, however, should be of a scale comparable to that of townhouses and compatible with detached houses. A desirable feature is that the buildings facing Old Northern Road should be screened from view from Garthowen Crescent.

Compatibility with the area’s character

24 The Court heard the evidence of Mr A Ludvik, a town planner, and Mr S Menzies, an architect, both retained by the applicant. In the council’s case the experts were Mr C McKenzie, a council planer, and Mr N Dickson, an architect and urban designer. In Mr Ludvik’s opinion, the proposal fits well into its setting. The buildings facing Old Northern Road are large-scale and this fits into Old Northern Road. The buildings facing Garthowen Crescent are two-storey and of a similar scale to town houses. Mr Menzies’ view was that the 2(a) zoning determined the site’s context. Since the 2(a) zoning permitted apartment buildings, the proposal was compatible with the zoning.

25 Mr McKenzie and Mr Dickson took issue. Mr McKenzie pointed out that the building form of the proposed apartment buildings will always appear out of place in the Garthowen precinct due to their form, ie reliance on balconies for private open space, excessive bulk resulting from a combination of length and height. Mr Dickson pointed out that the predominant character of Garthowen Crescent is of single-storey detached dwellings centred on the historic house called ‘Garthowen’. The site now contains a canopy of huge eucalypts and other trees that provide a strong visual reference. The proposed apartment buildings, especially the two buildings that exceed two storeys, do not fit within either the existing context of the site or the likely future character of the area. In Mr Dickson’s view, the Nos 11-13 application was less acceptable than the No 9 application. This was because Building A in the Nos 11-13 application was significantly larger than the Building B in the No 9 application.

26 I agree with Mr Dickson that Building B in the No 9 application is a much better fit into the existing and future character of Garthowen Crescent than Building A in the Nos 11-13 application. The former is 25m long, contains 8 dwellings on two storeys and follows the street alignment. The latter is 50m long, contains 16 dwellings on two storeys and does not follow the street alignment. Building B in the No 9 application is acceptable in the Garthowen Crescent streetscape, while Building A in the Nos 11-13 application is not.

SEPP 65

27 It is common ground that cl 30(2) of SEPP 65 applies to the proposal. This subclause refers to ten design principles against which a development application should be assessed. The principles are: Context, Scale, Built Form, Density, Resource, energy and water efficiency, Landscape, Amenity, Safety and security, Social dimension, and Aesthetics.

28 In a written report that became Exhibit G, Mr Menzies assessed the proposal against the above ten design principles and found that it came out with flying colours on all of them. However, Mr Menzies statement kept to generalities. For example on energy efficiency he found it sufficient to say that

The proposed building design does implement careful consideration for passive solar design principles and efficient hot water systems in coordination with the selection of efficient appliances.

29 Mr Dickson disagreed. He criticised the proposal in relation to the principles of built form, energy efficiency and landscape. On built form he considered that all the buildings were too close to each other, thus reducing the level of privacy between dwellings. On energy efficiency, he noted that 13 of the 42 dwellings in the Nos 11-13 application were single south-facing apartments. Twenty-nine of the 42 dwellings received at least three hours of sunlight at the winter solstice. Twenty-five of the 42 dwellings failed to provide good cross ventilation.

30 The No 9 application performed much better. Four out of 34 dwellings were single south facing apartments. Thirty of the 34 dwellings received three hours of sunlight at the winter solstice. Twelve of the 34 dwellings did not provide good cross ventilation.

31 Mr Dickson commented that the floor to ceiling height of the dwellings was 2.5m, rather than 2.7m as required by SEPP 65.

32 Mr Ludvik did not provide comparable figures on all these aspects. With regard to single aspect south-facing orientation, he said, in relation to the Nos 11-13 application, that “only 16 of the proposed 42 apartments are to have a single southerly orientation”. (Mr Dickson’s figures were more favourable to the applicant.) Mr Ludvik and Mr Dickson agreed that 4 out of the 32 apartments in the No 9 application were single aspect south-facing apartments.

33 The applicant tendered a set of diagrams by Mr Menzies in which he indicated the apartments on which he disagreed with Mr Dickson that they were either south-facing or lacked cross-ventilation or both. The diagrams came to the Court as Exhibit Q. It was superimposed on copies of diagrams out of Mr Dickson’s evidence. On some pages Mr Menzies crossed off Mr Dickson’s numbers and substituted his own, on others he circled them without indicating what he thought of them, yet on others he added a question mark. I cannot understand this exhibit, and its content does not appear to have been the subject of the joint meeting of experts. This is precisely the kind of evidence that the Court’s direction for a joint experts’ report is intended to avoid. Since I could not understand the exhibit and since Mr Ludvik and Mr Dickson generally agreed on the dwellings with south-facing aspect, I relied on Mr Dickson’s evidence.

34 These figures should be assessed in the context that the site is on a north-facing slope and there are no buildings nearby overshadowing it. The figures indicate that on some aspects of internal amenity (such as privacy between dwellings), both applications performed poorly, though not unacceptably. On aspect and winter sunlight, the No 9 application performed very well, while the No 11-13 application performed unacceptably. On cross-ventilation the No 9 application performed reasonably, while the Nos 11-13 application performed unacceptably. In general, the performance of the No 9 application was acceptable, while that of the Nos 11-13 application was not.

Egress to Old Northern Road

35 The Nos 11-13 application provides for vehicular access from Garthowen Crescent and egress to Old Northern Road, while the No 9 application provides for access from and egress to Garthowen Crescent. Old Northern Road is a classified road under the Roads Act 1993. Under s7 of that Act the council is the roads authority for it. Consequently the council is also the consent authority for matters such as egress to Old Northern Road. Under s138 of the Roads Act the council may grant consent only with the concurrence of the RTA. The Court, under s39(6) of the Land and Environment Court Act 1979, may grant consent without the concurrence of the RTA. It is common ground that the Court has the power to grant consent to the Nos 11-13 application irrespective of the opinion of the RTA.

36 Amendment 85 introduced cl 44 to the LEP, which requires that, where land adjoins a classified road, vehicular access to and from the land should be made by way of another road, not being a classified road, provided that such a road is available. The savings clause, cl 45, applies also to this provision.

37 On 22 November 2002 the RTA wrote to the council advising that it

did not support direct vehicular access to the state road network where there is alternative access to the site via the local road network ”. The Authority added that “ the site has reasonable access from Garthowen Crescent, which provides it with safe access to the State road network via signalised intersection. …if considered imperative, the authority would be prepared to further consider the provision of ‘Ingress’ only to this site from Old Northern Road, via a deceleration lane to RTA standards .

38 On 24 November 2003 the RTA sent a second letter to the council advising that its earlier comments on the development application remain unchanged. Both letters included a contact person and contact telephone number for further inquiries.

39 The applicant’s traffic expert, Mr R West, told the Court that egress to Old Northern Road of 90-odd cars was acceptable because it reduced the traffic in Garthowen Crescent while adding only a minute amount to the traffic on Old Northern Road. Although he was aware of the RTA’s opposition to the arrangement, he had not contacted the RTA and had not discussed the matter with an RTA officer. He did not know whether the applicant would need the RTA’s approval to exit to a classified road. He had given no consideration to the Authority’s suggestion of ingress from Old Northern Road via a deceleration lane.

40 Ms A Levy, the council’s traffic planner, placed major weight on cl 44 of the LEP. In her opinion, all access should be from Garthowen Crescent. While this would increase the traffic in the quiet Crescent, the traffic volume would remain under the Crescent’s environmental capability. Mr McKenzie agreed that all access and egress should be from Garthowen Crescent. However, the traffic generation of this proposal was too much of an abrupt change for the Crescent. He considered this a constraint on the site and suggested that it should be developed with fewer dwellings and therefore fewer cars.

41 In my opinion, the vehicular egress to Old Northern Road is a source of great difficulty for the Nos 11-13 application. While the Court has the discretion to determine the application despite the RTA’s opposition, it has very little basis on which to exercise this discretion. The RTA’s views were first expressed more than a year before the hearing began. They were confirmed shortly before the hearing. Yet the applicant’s traffic expert gave evidence in conflict with the RTA’s views without any attempt to understand the reasons for those views. I note with amazement that neither Mr West nor any of the applicant’s other experts made contact with the RTA. If Mr West is correct and the impact on Old Northern Road is negligible, he may have succeeded in persuading the Authority that in this case its general principle of discouraging direct egress from sites to classified roads should be varied. As it is, the only evidence of the RTA’s views before the Court are two letters that indicate that direct egress is not appropriate.

42 I do not think it would be reasonable for the Court to disregard the RTA’s opinion without knowing the basis for it or without giving the Authority an opportunity to explain the reason for its position. Given that the idea of egress to Old Northern Road arose from the Court, it would also not be reasonable to refuse the Nos 11-13 application only on this ground. If this were the only flaw in the proposal, I would extend the hearing to allow the parties to consult with the RTA and to give the RTA an opportunity to be heard on the matter.

43 I note that the applicant would accept a condition requiring all access to be from Garthowen Crescent. I do not think that this would be satisfactory. While the plans were exhibited showing all access from Garthowen Crescent, following the applicant’s latest amendment, the objectors were told that egress for the Nos 11-13 application would be to Old Northern Road. If this course were followed, the hearing would also have to be extended to allow the objectors to comment.

Loss of trees

44 The council’s tree expert was Mr R Scholz, and the applicant’s was Mr D Draper, both arborists. With one exception, they agreed on the trees to be removed and retained. For the Nos 11-13 application, 11 trees were to be removed and 10 trees retained. For the No 9 application, 9 trees were to be removed and 20 trees retained.

45 The council’s experts criticised the designer of the proposal for not making a greater effort to avoid the loss of trees. The applicant’s landscape consultant, Ms N Sonter, considered that the proportion of trees being retained was a favourable aspect of the proposal. In my opinion, the large number of trees lost is regrettable and a negative feature of both proposals. However, I do not think that this shortcoming, by itself, justifies refusal. I note that a higher proportion of the existing trees is being retained in the No 9 application than in the Nos 11-13 application.

Impact on “Garthowen”

46 The council’s expert on heritage was Mr D Scobie, while the applicant’s was Mr G Patch, both architects. They disagreed on the proposal’s impact on the heritage item “Garthowen”. In essence, Mr Scobie’s belief that the proposal had an unacceptable impact was based on the general opinion (held also by Mr McKenzie and Mr Dickson) that the proposal did not fit into the detached housing character of Garthowen Crescent.

47 I do not think that Building B of the No 9 application has much impact on “Garthowen” as it is not immediately next to it. Building A of the Nos 11-13 application is closer and bigger, so it would have some impact. On balance the heritage impact even of the closer building, by itself, would not justify refusal. However, a smaller Building A in the Nos 11-13 application would make the proposal better from the heritage viewpoint, as well as from the viewpoint of fitting into the street.

Approving only one application

48 In Mr Leggatt’s submission it was open to the Court to approve only one of the applications. Mr Tomasetti submitted that the two applications went hand-in-hand. They should pass or fail together.

49 I do not accept that the two applications must pass or fail together. They were lodged on different dates. They were refused on different dates. Several of the experts prepared separate reports for them. The parking is independent and the egress arrangements are different. The No 9 application consistently performs better than the Nos 11-13 application. There is no reason why their assessment should come up with the same result.

50 For the above reasons the No 9 application is approved and the Nos 11-13 application is refused.

Orders

1. Appeal No 11017 of 2000

(the Nos 11-13 application) is dismissed.

2. Development application o erect two residential flat buildings containing 42 dwellings on Nos 11 and 13 Garthowen Crescent, and Nos 292, 294 and 296 Old Northern Road, Castle Hill is determined by refusal.

3. Appeal No 11317 of 2000

(the No 9 application) is upheld.

4. Development application to erect two residential flat buildings containing 34 dwellings on No 9 Garthowen Crescent and 286A, 288 and 290 Old Northern Road, Castle Hill, in accordance with the plans DA01C, DA 02B, DA 03D, DA 04D, DA 05D, DA 06D, DA 07B, DA 08C, DA 09C, SW 01D and L 01B and the arborists’ agreed drawing on trees to be retained, received by the Court on 17 December 2003, is determined by the granting of consent subject to the conditions in Annexure A.

5. The exhibits are returned except Exhibits 15, 23 and K.

_________________

Dr John Roseth
Senior Commissioner