Blue Water Constructions Pty Ltd v Hastings Council

[2003] NSWLEC 347

>

Land and Environment Court

of New South Wales

CITATION:

Blue Water Constructions Pty Ltd v Hastings Council [2003] NSWLEC 347

PARTIES:

APPLICANT
Blue Water Constructions Pty Ltd

RESPONDENT
Hastings Council

FILE NUMBER(S):

10511 of 2003

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Residential flat building - non compliance with SEPP 65 - excessive height - internal amenity - public interest

LEGISLATION CITED:

State Environmental Planning Policy No. 65
North Coast Regional Environmental Plan
Hastings Local Environmental Plan 2001

CASES CITED:

DATES OF HEARING:

8, 9 and 10 December 2003

DATE OF JUDGMENT:

12/24/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Baltins, solicitor
SOLICITORS
Willis & Bowring

RESPONDENT
Mr S Miles, solicitor
SOLICITORS
Donovan Oates Hannaford

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10511 of 2003

Hussey C

24 December 2003

Blue Water Constructions Pty Ltd

Applicant
v

Hastings Council

Respondent

Judgment

Background

1 This appeal was lodged against council’s deemed refusal of the development application for a 9-storey residential flat building (RFB), containing 26 units at 21 Gore Street, Port Macquarie, which is located in the Westport precinct.

2 Insofar as a number of issues were identified, the predominant issue concerns the height of the building in this location and the resultant amenity impacts. The associated public interest considerations concern the status of the current planning framework, particularly the provisions for establishing the future character of this area.

3 From the evidence presented to the Court, reference was made to a previous development consent for a similar building, granted in 1995. That consent was for 27 units within a 9-storey building with ground level parking. This consent was subsequently amended, including the reduction of one unit. Following lapse of this consent, the current development application was lodged.

4 During the consideration process of this application, the development controls were changed. In April 2003 council repealed the provisions of the development control plan, covering the Westport precinct. This removed the 9-storey height limit, on the basis that the SEPP 65 controls would apply.

5 Concurrently with this, the specific planning controls for this area have been under review, leading to the preparation of a draft DCP (exhibit 14). However these draft controls are still subject to public comment, before finalisation by council.

6 The draft controls consider a range of options for development within this precinct. It appears from the evidence that, development with a reduced height limit of 4 - 5 storeys, is preferred by the various planners, acting on behalf of council.

The site

7 The subject site is located on the southwest corner of the intersection of Gore and Bridge Streets and is described as Lot 21 in DP 758853.

8 The site is regular in shape with a northern frontage to Bridge Street of 40.235 m, and an eastern frontage to Gore Street of 50.29 m, with a total site area of 2023.42 m2. The site slopes from south to north, with an overall fall of approximately 3 m.

9 The site is located to the west of the Port Macquarie CBD in the Westport precinct. This precinct is characterised by wide, grid pattern streets with a mix of single- dwellings, single storey villa development, residential flat building is generally of 3 to 4 storeys. There are four buildings over 14 m in height, located on the north-east corner of the precinct, together with some commercial uses along the southern boundary of the precinct, as shown on Fig 1.

The proposal.

10 This proposal is for the construction of a 9-storey residential flat building (RFB) on a podium, above 2 basement carparking levels. It contains a total of 26 apartments comprising 1 x 1 bedroom, 8 x 2 bedroom, and 17 x 3-bedroom dwellings and carparking for 43 vehicles. At the ground floor level there is a common area comprising a recreation room, gym, small kitchen and other facilities opening onto a communal swimming pool and barbecue area.

State Environmental Planning Policy No. 65 (SEPP 65)

11 This SEPP 65 was gazetted on 26 July 2002 and, subject to the Transitional Provisions, comes into effect progressively. The Transitional Provisions require council to take into consideration cl 30 (2) of the Policy.

12 Part 2 of the Policy sets out "Design Quality Principles" and cl 30 (2) requires the consent authority, in determining a development application to take into consideration the design quality of the residential flat development when evaluated in accordance with the design quality principles.

North Coast Regional Environmental Plan 1988 (NCREP)

13 This REP was gazetted on 15 January 1988 and provides guidelines for councils in the formulation of local environmental plans. Of relevance in this matter is cl 32 B which requires council to take into account:

• The New South Wales Coastal Policy 1997;
• The Coastline Management Manual; and
• The North Coast Design Guidelines.

14 Clause 51 - Tall buildings; requires the application to be referred to the Department of Infrastructure, Planning and Natural Resources (DIPNR) if the proposed development is over 14 m in height and does not comply with provisions of the development control plan.

Hastings Local Environmental Plan 2001 (HLEP)

15 This was originally gazetted on 8 June 2001 and has subsequently been amended.

16 Clause 9 deals with the zoning of land and provides that the consent authority has to take into consideration objectives of the zone that are relevant to the development. The subject land zoned 2 (a1) Residential, where residential flat buildings are permissible with consent.

Hastings Development Control Plan No. 9 (DCP 9)

17 This DCP came into force on 1 January 2000 and applied to the subject site at the time the development application was lodged with council. On 16 April 2003, Hastings Council resolved to repeal DCP 9 insofar as it relates to the section of Westport with a maximum height limit of 25 m. This DCP contains details on its relationship to other planning instruments and the principles and objectives of the DPC.

18 Section 2 contains various design criteria for development. Section 3 contains Special Provisions and s 4 appendices including the "Heights and Floor Space Ratios Maps".

Development Control Plan No. 48 - Energy Efficiency Development

The evidence

19 Detailed evidence on behalf of council was presented by:

• Mr P Owens, planning manager with Hastings Council and his reports are exhibits 1, 12 and 13.
• Mr P Thalis, consultant architect/urban designer and his reports are exhibits 2 and 11.
• Mr Edwards, neighbour 4/128 Bridge Street.

20 For the applicant, evidence was presented by:

• Mr L Fletcher, consulting planner and his report is exhibit G.
• Mr C. Jenkins, consulting architect and his report is exhibit H.

Building height

21 In addressing this threshold issue, the applicant’s expert rely on the provisions of DCP 9, which prior to repeal in the Westport precinct allowed 9-storey buildings. This is confirmed by council's previous approval of a 9 storey RFB on the site. Mr Fletcher considers that unless the provisions of DCP 9 are given due weight, there is a planning vacuum in respect of the maximum height of RFB’s. Therefore he says that it is relevant to take into account the development control regime that guided the design of the current application. Additionally, he says that in the absence of any other guidelines, council officers considered it appropriate to assess the development application against this control, notwithstanding council's decision. As the proposal complies with this DCP 9, he considers it merits consent.

22 Against this, Mr Owens says that reliance on DCP 9 is not appropriate due to its repeal, this action being undertaken in conjunction with a detailed review of the development guidelines, so as to define the desired future character of this area. According to Mr Owens, there is no planning vacuum because the provisions of SEPP 65 provide adequate controls for the design of RFB’s.

23 In support of this approach, Mr Thalis has undertaken a detailed assessment of the proposal against the SEPP 65 guidelines. From this he has identified the following deficiencies with the development application:

• inadequate information in detailing the site constraints,
• inconsistencies and omissions with various aspects of the plan details,
• unsatisfactory integration of landscaping and drainage,
• unsatisfactory positioning of the common swimming pool.

24 Notwithstanding this, Mr Thalis then says that this proposal does not adequately address the provisions of the SEPP 65 and therefore represents "an inadequate and outdated design response". In summary, his reasons for this conclusion are as follows:

• The proposal makes no attempt in any way to relate to either existing or potential future context, because of its height it will be clearly visible above the 1 to 4-storey buildings existing in the locality. Therefore it is difficult to comprehend the applicant’s comment in the statement of environmental effects that the 9-storey development "would have no impacts of any kind of the environment".
• The windows and balconies located on the sides of the proposal will cause privacy problems, should sites either side redevelop. Furthermore the design would inhibit the orderly development of those sites, as those neighbours would need to accommodate issues of visual and acoustic privacy, bulk and overshadowing generated by the development in its current form.
• The streetscape impact is unsatisfactory because of the visual impact of the larger setbacks of the podium and building elevations, in this wider street context. This design does not provide a desirable street level relationship.
• The landscape information does not appreciate any of the issues identified in SEPP 65 as particular or pertinent to urban landscapes and streetscapes.
• The internal amenity is severely compromised because in Units A and B the bedrooms open directly off the living areas and there is a high percentage of study alcoves, bathrooms and laundries located internally without access to daylight and fresh air, which is considered undesirable.
• The visual privacy on all 8 upper levels between the units principal private open space and the neighbouring units principal rooms is exceptionally poor because of the location of the balcony on Unit A, which is within touching distance on bedroom to be in Unit B.
• There is a potential safety and security problem because the building is unnecessarily removed from the street. The high and defensive carpark podium to Bridge Street further removes the ground floor units from engagement with, and surveillance off street life.

25 Mr Thalis also says the proposal is extremely poor in terms design quality and lacking in architectural merit due to:

• unresolved architectural character,
• lack of design resolution of architectural elements, such as windows screening,
• poorly considered elevations, not appropriate to their urban setting,
• lack of detail on junctions, colours, procure satellite
• inappropriateness/lack of consideration balconies
• poor resolution of roof form/skyline,
• lack of integration of site planning, unit planning and landscape design.
  

26 Apart from these criticisms of the subject design, Mr Thalis also referred to the current planning review being undertaken by UDAS, which involves the preparation of an urban design policy. On this basis he accepts that the existing maximum FSR of 1.8:1 could remain, but the maximum height is likely to be 4-5 storeys.

27 Furthermore he says that given the areas strategic location, generous street pattern, and undeveloped character, that he agrees the area is well-suited to the intensity of development now envisaged by council and UDAS. Accordingly he prepared three alternatives urban design envelopes for the site, which included the following design principles:

• an urban form comprising street edge buildings to define the public domain, with consolidated landscaped areas at the centre of blocks,
• architectural corner definition to appropriately relate to the streets,
• multiple building entries to address the street frontages,
• consistent building alignments to the street, allowing for setbacks incorporating the shore of landscaping.

28 In response to these criticisms, Mr Jenkins has undertaken several design amendments and clarified aspects of the building specifications, to enable its merit assessment.

29 Notwithstanding this, the fundamental difference remains between the parties regarding the future character of the precinct. With the applicant's preference for a tower building with smaller footprint against the council’s apparent preference of a lower, more sqaut form of building.

30 In order then to assess this development application during this interim period when the urban design policies are under review, the planners agreed that the following design principles are applicable:

i) vistas from public places,
ii) view sharing,
iii) streetscape presentation,
iv) amenity, both internal and external,
v) topography,
vi) built form of proposal.

31 However the agreement to these design principles did not result in any change in the position of the respective planners, regarding the merits of the proposal.

Conclusions.

32 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent for the following reasons.

33 One of the fundamental s 79 C considerations is whether the site is suitable for the development. In this case the land is relatively large and in a prominent position as confirmed on the view. I also accept that this immediate area is in a transition phase of development and that any highrise building will generate significant impacts including visual impacts. Accordingly I consider due consideration has to be given to the available evidence concerning the desired future character of the precinct.

34 I accept that DCP 9 allowed buildings of this 25 m height and that council previously granted consent to such a building on this site. However it is apparent that council does not wish to continue this form of development, which is evidenced by its repeal of this height provision in DCP 9 for the Westport precinct. Furthermore I accept that detailed investigations are proceeding to formulate an appropriate urban design policy for this area. This is based on the UDAS study, which has resulted in the draft DCP, which presents a number of development options, with a strong preference that the maximum height will be 4-5 storeys.

35 Whilst I note the applicant's submissions that this is not yet a relevant planning instrument, nevertheless other correspondence tends to confirm this reduced maximum height. Currently cl 51 (3) of the REP requires applications of this nature to be referred to DIPNR for concurrence. The referral of this application has resulted in the following response - "it is unlikely that concurrence would be granted to the proposed development for reason that the proposal fails to satisfy the heads of consideration of cl 51 (3) of the North Coast Regional Environmental Plan relating to social, visual and amenity impact."

36 Further evidence of the likely reduction in maximum height is found in DIPNRs following response to a nearby 6-storey RFB at Lots 57 and 58 Waugh Street, "the Department considers the proposed development may have an adverse social, visual and amenity impact. While council’s opinion is that the proposal is generally acceptable, the Department is concerned that approval of a six-storey building will pre-empt the outcome of controls currently being developed for the Westport area. Of particular concern is council’s advice that it is likely that a five-storey height limit will apply to the land and that a number of design issues have not been resolved."

37 Therefore, based on my understanding of this evidence, I am inclined to adopt a cautious approach and accept the council’s witnesses evidence that it is likely the maximum height allowed in this Westport precinct will be in the order of 4 - 5 storeys and consequently the proposed development is not consistent with this and therefore not in the public interest. In reaching this conclusion I place significant weight on the evidence of Mr Thalis and Mr Owen, which is supported by the DIPNR responses.

38 Insofar as the parties acknowledge the lack of specific site controls and make alternative submissions for the Court to establish criteria for the future development of this precinct, I do not think this is appropriate. As DIPNR noted, there are a number of design issues to be resolved. According to the evidence presented to the Court, these include the appropriate building heights, site coverage, streetscape presentation and criteria for local building design character. Accordingly, I am satisfied that the adoption of policies to establish the future character of this area is council’s responsibility, after the requisite public participation procedures have been undertaken.

39 Notwithstanding this, I note that the issues refer to SEPP 65, which I consider is the prevailing control and both sides addressed it to some extent. The associated design quality principles refer to the context, which is the most critical element for this proposal. However there is no compelling analysis, which relates the impact of this 9 storey building to the built features of the surrounding area. The existing buildings are all of a much lower height of the proposal and would present a significant contrast to these buildings. Furthermore there are no basement car parks with prominent podiums with unit towers above. Therefore I would expect some compelling arguments as to the appropriateness of this design for this site.

40 But it seems to me that Mr Jenkins application of the relevant guidelines is quite limited and inadequate. He does not provide detailed assessment of the area context in which this 9-storey building is proposed. Instead he places greater alliance on compliance with the previous controls in DCP 9 and this includes reference to building scale and setbacks. However I accept Mr Miles submissions that these controls should be given little, if any weight because they have been repealed.

41 By reference then to the agreed design principles, it is obvious that the building will be dominant from a number of viewpoints. This was demonstrated on the view, where the building height and scale is of observable from a number of the key observation points, including the main entry road and other points in the CBD. In this regard, I accept Mr Owens evidence that the controls do not seek to focus on significant buildings in this area.

42 It also appears to me, that many of the criticisms of the buildings built form made by Mr Thalis are valid and that the design has not been sufficiently upgraded from the 1995 consent, so as to provide the expected current levels of amenity for such development. Insofar as amendments were made to the position of the swimming pool and landscaping during the hearing, I accept Mr Owens reservations that an acceptable level of amenity could result.

43 The criticisms include a poor separation relationship between the balcony of Unit C to the bedrooms of Unit B, notwithstanding the proposed translucent glass screens and landscaping, that Mr Owen said was a limited value. Similarly the poor separation relationship between Unit C balcony and bedroom 1 of Unit B. I also accept Mr Thalis's concerns about the poor amenity of the main bedrooms off the living rooms.

44 In summary then, I have assessed the merits of the application on the basis that SEPP 65 is the prevailing control and that the previous controls in DCP 9 have been repealed. Accordingly I do not consider that the applicant has adequately demonstrated that this proposed 9-storey building is consistent with the existing area context or the likely desired future character. In my assessment neither Mr Jenkins nor Mr Fletcher has provided compelling evidence to support this major proposal in terms of the SEPP 65 design quality principles, which I consider it is essential considering the impact such building will have in this locational context.

45 In the ultimate, I rely on the evidence of Mr Thalis, who has extensive experience as an architect and urban designer, that this proposal is deficient in relation to several key aspects of SEPP 65 design principles, including not relating to its context, the streetscape impact and impact on adjoining properties. For these reasons then I consider this application should be refused.

1 The appeal is dismissed.
2 Development application No. DA 2002/0477 for the construction of a 9-storey residential flat building at 21 Gore Street, Port Macquarie, is refused.
3 The exhibits may be returned except for 1, 2, 7, A, B, G and L.

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