Cirillo v Warringah Council
[2007] NSWLEC 256
•20 April 2007
Land and Environment Court
of New South Wales
CITATION: Cirillo v Warringah Council [2007] NSWLEC 256 PARTIES: APPLICANT
RESPONDENT
Anthony Cirillo
Warringah CouncilFILE NUMBER(S): 10963 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- demolition of existing building and construction of a 2-storey mixed commercial residential building, desired future character and streetscape. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Warringah Local Environmental Plan 2000
State Environmental Planning Policy 65DATES OF HEARING: 12/04/2007 and 20/04/2007 EX TEMPORE JUDGMENT DATE: 20 April 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr J. Johnston, barrister
Instructed by Mr W. BowringRESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
10963 of 2006 Anthony Cirillo v Warringah Council20 April 2007
This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT
1 This appeal relates to Development Application No, 2005/168, which is for the demolition of existing buildings utilised for an existing car repair station and the construction of a two-storey mixed residential commercial building with basement car parking at 33 Truman Avenue, Cromer.
2 The site comprises Lot 35 DP240298 and is situated on the corner of Maybrook Avenue, Truman Avenue and Belmore Lane. Adjoining the site to the north is the existing Cromer commercial centre which is developed with a number of single storey shops and commercial premises. Otherwise surrounding development comprises detached single dwellings and a nearby retirement village.
3 Under the Warringah Local Environmental Plan 2000 (“the LEP”) the site is included in the B7 Narrabeen Lake Suburbs Locality. In this locality the proposed development is permissible with development consent. In this context offices, shops, medical centres and the like are included in Category 1. Also included in Category 1 is housing that is not on the ground floor otherwise housing is included in Category 2. Clause 12(1)(a) of the LEP requires that before the granting of consent for development the consent authority must be satisfied that the development is consistent with any relevant general principles. Clause 12(3)(a) also requires that before granting consent to a Category 1 development the desired future character described in the relevant locality statement must be considered. The commercial premises and the first floor dwellings are Category 1 developments. Clause 12(3)(b) imposes a higher test in relation to Category 2 developments requiring that such developments be consistent with the desired future character described in the relevant locality statement. The proposed ground floor dwellings are Category 2 developments.
4 The Desired Future Character Statement for the B7 Locality emphasises the maintenance of the detached style housing in landscaped settings character. It recognises that the locality will continue to be served by existing local retail centres and that future development in those centres is to be in accordance with certain general principles identified in cl 39 of the LEP. In addition the B7 Locality requires a maximum building height of 8.5 m above natural ground level to the top of the building’s ridge and a maximum height from natural ground level to the building’s uppermost ceiling of 7.2 m.
5 The relevant principles in cl 39 comprise:
- “Local retail centres are to incorporate a range of small scale shops and business uses at street level with offices or low rise shop-top housing (being housing not on the ground floor) above to create places with a village-like atmosphere that provide a safe and comfortable environment for pedestrians and a range of business and community uses meeting the needs of the surrounding area.” and
- “development is to integrate with the established pattern of the centre and the continuity of existing streetscapes is to be maintained.”
6 The development application was advertised and 26 submissions plus a 6 signature petition objecting to the proposal were received. Matters of concern raised in those submissions relate to construction noise and traffic, traffic safety and parking, beyond capacity of existing roads and intersections, excessive building height, excessive residential density, absence of landscaping, no need for extra shops, inconsistent with existing residential character, amenity impacts including overshadowing and loss of privacy, and the unattractive appearance of the development. When the hearing began on site a number of residents were given the opportunity to explain these concerns in detail.
7 In August 2006, a report was prepared by a council officer recommending that conditional development consent be granted. Council’s independent hearing and assessment panel subsequently reviewed the proposal and concluded that it was unsatisfactory, noting that it failed to provide an appropriate transition with surrounding residential areas.
8 On 29 August 2006 the council resolved to refuse the application for reasons including: failure to maintain streetscape consistency; inconsistent with the scale, density, solar access and cross-ventilation principles in State Environmental Planning Policy 65 (“SEPP 65”). The proposal has since been amended and as a consequence SEPP 65 no longer applies.
9 The amended statement of issues identifies issues of concern comprising inconsistency with the B7 character statement of the LEP mainly in relation to built character and streetscape and building height, impacts on the existing surrounding built environment, unsatisfactory internal amenity particularly in relation to sunlight access and private open space, lack of detail as to the use of certain ground floor tenancies and the public interest.
10 As a consequence of onsite discussions and the advice of the court appointed expert, the applicant provided amended plans and a number of issues were no longer pressed. Resultantly the respondent’s remaining issues seem to be as follows:
1. The proposed development is not consistent with the desired future character of this locality because it fails to integrate with the established pattern of the Cromer business centre and the continuity of the existing streetscape is not maintained.
2. The provision of dwellings at ground floor level is not consistent with the desired future character of the Cromer business centre.
11 The court was assisted by the town planning evidence of Ms D Laidlaw, the court appointed expert. I was also assisted by Mr R Cole, a council town planner, and the applicant’s architect, Mr S Malik.
12 According to the architect’s drawings the building variously exceeds the applicable height limits by up to 500 mm. This non-compliance was not pressed as a matter of fundamental concern by the respondent nor was it of concern to Ms Laidlaw. Taking these matters into account and recognising the statutory flexibility within the LEP, I agree that this non-compliance is not significant. In reaching this conclusion I note that it is only a relatively small percentage of the building that exceeds these controls and that any exceedance would not be apparent to passers-by. I am thus satisfied that there would be no significant inconsistency in this context taking into account the applicable general principles of the LEP.
13 In relation to the second of the issues pressed by the council I note that the applicant has now agreed to a condition of consent which effectively converts the so-called “Business Premises 3” at ground level from what is plainly predominantly a dwelling to a business premises. There are nevertheless two dwellings remaining at ground floor level, one on the corner of Maybrook Avenue and Belmore Lane and the other adjoining it in Belmore Lane. These two dwellings are plainly not what is sought by the LEP in the Cromer Business Centre which instead seeks shop-top housing. Ms Laidlaw considered this matter and was of the opinion that the proposed development is not fundamentally inconsistent with the LEP in that around half of the active frontage of the development is for commercial use and that additional commercial premises would be unviable. Also the two dwellings in Belmore Lane would have an appropriate relationship with the existing dwelling houses opposite.
14 I have been persuaded by these arguments and accept that an appropriate transition between the subject site and the adjoining development would result. I thus accept that in this regard the proposed development would not be inconsistent with the desired future character and the applicable principles to the extent that might otherwise have required the refusal of the application.
15 The main issue in the case involves the Truman Avenue streetscape and in order to seek to resolve this issue the applicant provided amended plans which became Exhibit B in the proceedings. Ms Laidlaw considered these plans and provided a revised report explaining that she had some residual concerns involving the splayed awning and its depth, resulting in the shops appearing to be recessive and perhaps a little too dark and uninviting. Instead she recommends that the awning be limited to a depth of three metres to match the existing awning on the existing commercial development to the north. To this end she provided diagrams showing an alternate design for that part of the building involving business premises 1 and 2 and dwellings 5 and 6. Neither the respondent nor the applicant found this alternate design to be satisfactory.
16 Instead the respondent seeks to have the shopfront of proposed Business Premises 1 and 2 positioned in a continuing alignment with the existing business premises to the north and with an awning projecting three metres from this alignment, thus finishing a small distance short of the eastern property boundary. At the first floor level it was suggested that the eastern walls of Dwellings 5 and 6 be variously repositioned distances of up to about two metres to the west. This would result in a stepped eastern first floor façade that is essentially positioned above the shopfront below.
17 The applicant provided in Exhibit D a third design as an alternative to the preferred design in Exhibit B. This design provides for the angling out of the shopfront from the northern boundary where the site adjoins the existing commercial premises. It then extends to the south parallel to and set back three metres from the eastern boundary of the site. This 3 m setback area is covered by a proposed awning that splays back to the existing awning to the north of the site. The eastern façades of the dwellings at first floor level are set back behind the alignment of the shopfront below and are set at right angles to the northern boundary of the site so as to regularise their internal layout.
18 The applicant’s revised design on reflection is very similar to that produced by Ms Laidlaw however it overcomes one concern of Ms Laidlaw’s design involving its failure to have the shopfront and the edge of the awning in alignment with the property boundary. In my opinion this is a sensible adjustment. The applicant’s revised design provides a pair of planter boxes above the awning which Ms Laidlaw considered to be excessively heavy elements. This was not a matter of concern to the respondent and I agree with the applicant that these elements are an appropriate means of providing privacy between the two relatively close-by terraces.
19 The original design did not have an awning and Ms Laidlaw was critical of the architectural relationship between the shopfront at ground level and the dwellings above. With the introduction of the awning she was much less concerned about this and I agree with her. The awning is a strong visual element that facilitates different built forms at different levels without them appearing incongruous and this is now, I accept, the situation with this design. In dealing with this issue the relevant principle requires the integration of new development with the established pattern of the Cromer business centre and the maintenance of continuity of the existing streetscape, particularly in Truman Avenue. It is apparent that Ms Laidlaw believes that the alternate design that she provided would meet these tests and given that the applicant’s revised scheme in Exhibit D is very similar I expect that she would not have a fundamental problem with it.
20 I have now considered the applicant’s revised design in Exhibit D in the light of the form and character of the existing neighbouring building and I am satisfied that it would integrate with this development to the extent required by the LEP. In reaching this conclusion I have taken into account the step in the property frontages and splayed form of the shopfront, the awning and the balustrade above. The continuity requirement does not necessarily mean that the shopfront alignment and the parapet above of the neighbouring development must be continued through the applicant’s site. Indeed I believe that in applying this requirement one can again take into account the property boundaries.
21 Thus for similar reasons to those given in relation to the issue of integration I am satisfied that the requisite continuity has been provided and that whilst there is no straight line continuity the splaying and the first floor articulation result in additional architectural interest that supports this development in terms of its presentation in the streetscape. Hence I am satisfied that the revised design in Exhibit D now provides an appropriate transition between it and the adjoining development and would comprise an appropriate streetscape outcome in the context of the requirements of the LEP.
22 Finally I have given careful consideration to the concerns of the residents and have not been persuaded that any of these raise any fundamental matters that would require either the refusal of the application or its modification.
23 One of the main concerns involves impacts associated with additional traffic but here I acknowledge that the council has no concerns in this regard and thus accepting that council officers would have considered this matter and if it were a problem would have raised this with the court. Hence I accept that no fundamental problem arises here.
24 Another major concern of the residents was that the density of this development would be excessive. Again density was not a matter of concern to the council and recognising that the LEP anticipates two-storey development on this site, including shop-top housing, this is not a reason to refuse the application.
25 In relation to the conditions the only remaining condition in dispute was condition 95 that requires the security roller shutter in the basement to be maintained in the open position when any of the business premises are operating. I agree with the respondent that an intercom system would not resolve its concern but would tend to discourage the use of the basement car park by visitors and that ease of access is important to ensure that it is used for its intended purpose. I nevertheless recognise that if some businesses were to remain open late at night this could be problematical in terms of security, particularly for residents’ cars. Hence the condition should be amended to ensure that the shutter is open during ordinary business hours but not necessarily later at night. If it is necessary I expect that alternate security arrangements within the basement itself could be provided for residents’ cars.
1. The appeal is upheld.
3. Exhibits A, B and 7 are retained.2. Development Application No. 2005/168 for the demolition of existing buildings and the construction and use of a two storey plus basement building for mixed residential and commercial purposes at 33 Truman Avenue, Cromer is determined by the granting of development consent subject to the conditions in Annexure ‘A’ hereto.
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- T A Bly
Commissioner of the Court
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