Conca D'oro Lounge Pty Ltd v Ryde City Council

[2007] NSWLEC 143

Land and Environment Court

of New South Wales

CITATION:

Conca D'oro Lounge Pty Ltd v Ryde City Council [2007] NSWLEC 143

PARTIES:

APPLICANT
Conca D'oro Lounge Pty Ltd

RESPONDENT
Ryde City Council

FILE NUMBER(S):

11575 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- Residential flat buildings, amenity impacts, master plan, foreshore setbacks, bulk, scale and form

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Ryde Planning Scheme Ordinance
Meadowbank Employment Area Master Plan

DATES OF HEARING:

26-27/02/2007

 
DATE OF JUDGMENT: 

27 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr T Hale, SC
Instructed by: Collins Biggers and Paisley

RESPONDENT
Mr A Pickles, barrister
Instructed by: Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

27 March 2007

11575 of 2005 Conca D’oro Lounge Pty Ltd v
Ryde City Council
JUDGMENT

Introduction
The application

1 This appeal relates to Development Application No. 525/2004, which is for the construction of three, four-storey residential flat buildings containing 44 dwellings above a common basement providing car parking for 74 vehicles at 146 Bowden Street, Meadowbank. It is also proposed to construct and dedicate a new two lane public road along the southern boundary of the site and adjacent to the Parramatta River foreshore reserve.

2 The application is Integrated Development under s 90 of the Environmental Planning and Assessment Act 1979 because a permit is required from NSW Maritime under the Rivers and Foreshores Improvement Act 1948. General Terms of Approval have been provided.

The site and its environs

3 The subject land comprising Lot 101 DP 1037638 has an area of 7,531 sq m and a frontage of 36.5 m to Bowden Street. It also has a 163.6 m common boundary to the foreshore public reserve.

4 An almost completed mixed, mainly medium density residential and commercial development known as Faraday Park is located to the west of the site. There are a number of industrial land uses in the locality including light industrial land uses to the north and northeast of the site. The Meadowbank Ferry wharf is located approximately 200 m to the southwest.

5 The site is the subject of a number of drainage easements and easements for a petroleum pipeline.

Planning provisions
The Ryde Planning Scheme Ordnance

6 The site is zoned Business 3 (UV) Urban Village under the Ryde Planning Scheme Ordnance ("the PSO") and in this zone residential flat buildings are permissible with development consent. Clause 72ZB of the PSO provides that consent must not be granted to a development application unless the proposed development is consistent with the Meadowbank Employment Area Master Plan ("the Master Plan").

The Meadowbank Employment Area Master Plan

7 The master plan applies to the site and the surrounding area and contains a number of detailed planning controls relevant to this application, including a maximum building height of three storeys, a maximum RL of 14.00 and a 20 m setback from the foreshore. The Master Plan is a master plan for the purposes of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 ("the Sydney Harbour REP").

8 Section 1.2 of the Master Plan explains how it provides a guiding framework and strategic intent for the development of Meadowbank by recommending planning strategies based on urban planning and design principles. Section 2.2 deals with future character, describing Meadowbank as an evolving transit oriented community where built form will be sympathetic towards and respond to the location on the Parramatta River and to topography in general. Importantly buildings should not dominate either the Northern ridgeline or the foreshore. In particular built height at the foreshore will be limited to four-storeys.

9 Section 2.3 lists a number of urban design principles that are to be applied to new development. The following are relevant to varying degrees to this application:

• Protect the existing treed ridgeline from being obscured by development;
• Protect the existing scale of the built environment;
• Respect the bulk, height, rhythm and scale of the existing neighbourhood and topography;
• Maintain and create views to significant points of interest, especially water vistas;
• Provide open space and pedestrian links to the foreshore;
• Create a significant park along the foreshore;
• Ensure safe, user-friendly pedestrian and cycleways are provided throughout the area;
• Provide an attractive streetscape enhanced with street trees and without the intrusion of overhead power and telecommunications lines.

10 According to the Proposed Planning Framework in s 2.4, the Master Plan includes the site mainly in Precinct 6 - Foreshore and partly in Precinct 7 - Foreshore Community/Cultural. Precinct 6 is described as:

11 A small area on the foreshore close to the ferry. A mix of uses or a single use such as community, conference and entertainment facilities, restaurants/cafes and medium density residential, would be appropriate. Architecture will be of the highest quality with development in keeping with the location along the foreshore adjacent to public open space. Development that takes advantage of the topography of the site and considers amphitheatre form would be appropriate. Industrial and light industrial uses will not be permitted.

12 Precinct 7 is described as:

Public open space along the foreshore characterised by extensive mangroves, mature trees, grassed open space and pedestrian and cycle access. Public art and street furniture will contribute to amenity. Compatible cultural activities will be considered, including a small-scale restaurant/cafes/kiosk. Views down Belmore Street to the water and vistas beyond will be protected and development will not inhibit access to the foreshore.

13 Section 2.4 also includes a number of urban form principles that seek to establish a diverse, cohesive and high-quality urban built form. The following principles are relevant to varying degrees to this application:

• Develop an urban form that is in keeping with Meadowbank's new role as a mixed residential/employment centre.
• Encourage a diversity of built form that reflects the physical characteristics and wider environmental context of the site.
• Ensure the built form reflects the existing scale, height and topographical characteristics of the site.
• Generate an urban form through the reinforcement of public open spaces and street networks.
• Develop an urban form that is compatible with existing regional patterns of land use and development.
• Accommodate diversity of land use that fosters a vital and robust economic and social environment.
• Ensure that building form provides interest, is articulated in both height and mass is not monolithic or bulky and resolves urban design and environmental objectives.
• Protect and enhance the treed ridge - line above the Meadowbank Basin by ensuring development does not visually encroach on it.
• Acknowledge the presence of mature trees at the waterfront and incorporate them into future development.

14 The approach to achieving these principles involves:

• The urban form will reflect, through appropriate density and height, a response to the undulating character of the topography, the aspect and views over the Parramatta River, and access to rail, road and Ferry transport networks.
• Building height will be determined by the number of storeys and the recommended maximum Relative Level (RL), whichever results in a lower building with less impact on the tree line of the ridge.
• Buildings are to be articulated vertically and horizontally: materials and building setbacks on the upper stories are to be used to reduce the perceived bulk of buildings.
• Built form is to be articulated in height and consideration given to interesting reforms including those that recognise the industrial history of the area (e.g., saw-toothed and flat roofs).
• Development along the foreshore and Church Street will require quality architectural design and incorporate setbacks and landscaping appropriate to their significance at the southern gateway to Ryde. In accordance with SEPP 56 principles, the height profile of the development will be set at 4 storeys on the foreshore
• Elsewhere the scale of existing buildings, the variations in topography and visual impact of development on the treed ridge-line will be the guiding principles and determinants of building height.

15 Figure 11 of the Master Plan indicates a maximum height of 3 storeys for Precinct 6 and Precinct 3 at the rear. Adjoining the site to the west and east, those parts of precincts 2, 3 and 4, proximate to the Parramatta River, have a maximum height of four storeys. Figure 12 and the associated Section C indicate for Precinct 6 a building of 3 storeys to a maximum recommended RL of 12.5 m with a 1.5 metre roof zone to a maximum RL of 14 m.

16 Section 3 of the Master Plan the deals with variations and planning agreements. Section 3.1 provides that:

Despite any other provisions of this Plan, the Council may grant development consent to a development application where the :


a) number of storeys proposed is one more than the maximum set out for that site on figures 11 and 16. This is subject to the maximum height of any proposed building not exceeding the recommended maximum Relative Level (RL) specified within this Plan;

b) the developer enters into a planning agreement to provide a planning benefit; and

c) the proposed development meets all other requirements of this Plan, including the design principles of section 2.3 (referred to above).

Development Control Plan 2006

17 The relevant provisions of Development Control Plan 2006 ("the 2006 DCP") are very similar to those contained in the Master Plan In dealing with height, it recognises the undulating topography of this locality which provides both constraints and opportunities for interest and variations in building height. It is particularly concerned about the preservation of views, the treed ridge line, character and building scale and as a consequence building height is critical. As a consequence it requires that at the foreshore, height will be limited to four storeys (a storey is to measure no more than 3.6 m floor to floor).

Other planning controls

18 Also said to be relevant are the following:

• State Environmental Planning Policy No.55 - Remediation of Land
• State Environmental Planning Policy No 65 - - Design Quality of Residential Flat Development
• State Environmental Planning Policy No 56 - Sydney Harbour Foreshores & Tributaries (now repealed)
• Sydney Regional Environmental Plan No. 22 - Parramatta River (now repealed but continues to be applicable by virtue of the savings provision in clause 11 of Sydney Harbour REP
• Development Control Plan No. 27 -Waste Management & Minimisation.
• Development Control Plan No. 29A - Car Parking
• Development Control Plan No. 37 - Access for People with Disabilities
• Development Control Plan No. 38A – Meadowbank
• Development Control Plan No. 41 - Stormwater Management
• Development Control Plan No. 42 - Construction Activities
• Development Control Plan No.45A - Energy Smart Water Wise
• Meadowbank Section 94 Contributions Plan.

Advertising and Council's decision
Referrals

19 The development application was lodged with the Council on 17 June 2004. Subsequently further information in relation to the proposal was sought and consultations and referrals undertaken with the Department of Natural Resources, the Department of Planning, Shell Australia, NSW Police, the Sydney Harbour Design Review Panel, Council's Design Advisory Panel and with various departments within the Council.

Advertising

20 The development application was advertised and some 14 objections were received. It was subsequently refused by the council on 12 January 2006 for 12 reasons which include: excessive building height; insufficient setback from southern boundary; unsatisfactory design aspects including built form and external appearance; non-compliance with the Master Plan; stormwater and flooding problems; unsatisfactory access road location; unacceptable landscape design; failure to meet 3.5 star energy efficiency rating; and failure to meet the waste minimisation objectives.

Amended plans

21 Amended plans were provided to the council on the 12 May 2006. These plans were advertised and five submissions were received. Matters of concern raised in these submissions include:

• Adverse impact on residential amenity including loss of privacy and loss of views over the Parramatta River.
• There is no need for more dwellings in this area which needs more open space and parks especially in the cafe/restaurant precinct.
• The proposed four-storey buildings will exceed the applicable height limits in council's planning controls and would be out of character with the surrounding area.
• Insufficient on site parking resulting in parking problems in the surrounding streets.
On site evidence

22 When the hearing began on-site, two of the resident objectors gave evidence explaining their particular concerns especially in relation to loss of views and privacy. Having carefully considered these concerns whilst visiting the properties concerned I was able to readily reach the conclusion that given the distance of separation between the objector's dwellings and the proposal there would be no unreasonable overlooking. I was also able to conclude that whilst the proposed building would result in a marginal loss of views, taking into account that the proposed building does not exceed the maximum RL indicated by the Master Plan this is not a reason to require a rejection or modification of the proposal.

23 The other matters of concern to the residents are effectively dealt with to the extent that they are of concern in the context of the issues raised by the council.

The issues
The Statement of Issues

24 The amended Statement of Issues (27 February 2007) identifies the following principal issues:

1. Whether the proposal is appropriate in its context in terms of its bulk, scale and form and in accordance with the desired future character as contemplated by the planning controls.
2. Whether the proposal should be approved having regard to the non-compliance with the Master Plan particularly in relation to the number of storeys and the setback from the foreshore.
3. Whether the proposed development has a satisfactory impact on the foreshore reserve and provides an adequate setback to the foreshore having regard to the requirements of the Master Plan.
4. Whether the amenity of the ground floor unit six is an adversely affected by the proposed floodwall in terms of outlook and solar access.

25 A number of other issues involving drainage site contamination energy efficiency the Shell oil pipeline are dealt with by conditions of consent.

Amenity of unit 6

26 As for the amenity of Unit 6 I agree that this unit does not have a good outlook and solar access and could have been better designed. However taking into account that this is the only unit of the 44 units proposed that is the subject of this criticism I am satisfied that the amenity of this unit would not be so poor as to require the refusal of the application.

Determinative issues

27 Hence the determinative issues for resolution by the Court in the light of the provisions of the Master Plan and the 2006 DCP are:

1. Whether the design and built form of the proposed development is satisfactory.
2. Whether the proposed development has a satisfactory relationship including its setback to the Parramatta River

The evidence

28 On behalf of the respondent Council expert evidence was provided by:

• Mr A Philps - drainage
• Ms G Morrish architecture and urban design
• Mr T Loveday - town planning

29 On behalf of the applicant expert evidence was provided by:

• Dr B Phillips - drainage

• Mr S McMahon - town planning and urban design

Design and built form

30 The provisions of the Master Plan and the 2006 DCP make reference to a maximum building height for this site of 3 storeys and plainly, having four storeys the proposal exceeds of this requirement. They also set a maximum RL of 14.00 to the top of the roof. The proposal complies with this requirement. Whilst the Master Plan requires that development should comply with both of these standards it does not provide any assistance in understanding what might be the purpose of the storeys limit as compared to the maximum RL. In other words as is the case here if the RL standard is met and the storeys standard is not how does one assess the non-compliance? Does it have objectives different to those of the RL standard?

31 Being unable to discern any particular objectives in relation to the storeys standard it is appropriate to consider the design principles contained in Master Plan. Those principles relevantly seek the minimisation of impacts on the existing treed ridgeline and an appropriate response to the existing scale of the built environment. Development will be responsive to the undulating character of the topography. The Master Plan and the 2006 DCP also, ambiguously, refer to the height profile of development being set at 4 storeys on the foreshore.

32 Taking these requirements into account I have reached the conclusion that the RL 14 standard is the most relevant bearing in mind the above-mentioned design principles as it is more closely responsive to these. Notwithstanding that the Master Plan contains diagrams that describe 3 storey buildings with a 1.5 metre roof space I do not accept that having 4 storeys rather than 3 storeys is critical when dealing with the relevant objectives of the Master Plan. Instead when dealing with matters such as bulk and scale by comparison with surrounding development, views and outlook, in this case towards the treed ridgeline it is the overall height that is important. I thus accept Mr McMahon's contention that there is no relevant difference between a 4 storey and a 3 storey building if the maximum 14 metre RL is complied with.

33 Also, the above-mentioned provisions of s 3.1 of the Master Plan can be taken into account in dealing with the storeys issue. These provisions provide for an extra storey in return for some planning benefit and in my view the construction and dedication of the proposed road can be considered to be one such benefit.

34 Mr McMahon and Miss Morrish agreed that, having a maximum roof height of RL 14, the development is considered to respond to the topography and to the river setting as required by the Master Plan. They also agreed that the principle of maintaining the treed ridgeline is met. There was no suggestion that the proposed development would result in any significant loss of views towards the Parramatta River from the public domain, which views are required to be protected by the Master Plan.

35 In relation to built form I note that the building footprints are appropriately positioned in response to the Master Plan recommendations for an amphitheatre form and that the three separate buildings add to the articulation provided by the stepping back of the upper levels. In these circumstances I am satisfied that in terms of bulk and height the proposed development is appropriately responsive to the requirements of the Master Plan and the 2006 DCP. More particularly I accept that it responds to Meadowbank's location on the Parramatta River and to the topography in general.

36 Miss Morrish and Mr McMahon nevertheless agreed that the proposed roof design should be reconsidered to emphasise the presence of three different buildings. I would add to this my own concern regarding the appearance of three large flat unarticulated roofs, which are overlooked by the Faraday Park development to the north and west. For example the westernmost building has a flat roof measuring 14 m by 34 m.

37 By scale the average separation between the three buildings is about 4.5 m. The dwellings at the top level (level 4) are setback from the principal perimeter of each of the buildings and have a comparable average separation between buildings of about 7 m. I have considered the extent and effect of this separation as shown by the building elevations and find it to be satisfactory particularly when taking into account the architectural detailing of the buildings especially the effect of the balconies. More generally and for the most part I am satisfied that these buildings are of a quality that is responsive to the requirements of the Master Plan.

38 The exception to this is the roof form that needs to be amended so as to provide some visual softening for the benefit of the neighbours who will overlook these buildings. If a relatively small proportion in the midst (ie well away from the roof edges and essentially above the stairs and bathrooms) of the three roofs were to be modelled or articulated (perhaps in the manner of skylights) and extend no more than 500 or 600 mm above RL 14, I expect that this concern would be sufficiently resolved without affecting the conclusions I have reached in relation to height bulk and scale. An examination of the photomontage [Exhibit B] reveals that this is entirely possible without affecting the treed skyline when viewed from Parramatta River. Amended plans to this effect are required as a deferred commencement condition.

Setbacks to the Parramatta River

39 Failure to comply with the setback requirements of the Master Plan is the most important reason for Council's opposition to the proposal. In order to understand its provisions in so far as they apply to Precincts 6 and 7 and in particular to this site it is necessary to consider the various figures incorporated therein. Whilst these figures are in part ambiguous and lack clarity they are nevertheless of assistance.

40 Figure 3 shows, (by reference to the visual scale on the map) a strip of public open space extending about 20 m from the edge of the Parramatta River. Figure 7 shows in the same location a strip of existing public open space (again by reference to the visual scale) about 15 m wide. Similarly, Figure 4 seems to show that Precinct 7 extends over the 20 m strip of public open space. The southern boundary of the site appears to extend, about halfway into this 20 m wide strip (the actual distance was unable to be confirmed).

41 Figure 5 indicates a continuous pedestrian foreshore access through this strip and to the south of the southern boundary of the site. This access presently exists and will be unaffected by the proposal. It also shows (as does Figure 8) an indicative new public road within the site and parallel to its southern boundary. Figure 9 seems to show this road within a 20 m foreshore setback.

42 Figure 10 shows a discontinuous building edge adjacent to this proposed new road and the 20 m setback from the foreshore. Figure 12 shows the location of Section C through Precinct 6 and this cross section shows a built form setback 20 m from the front of vacant site. The cross section shows, beyond this built form, about 45 m further to the north a proposed new laneway/link at the rear of vacant site, consistent with the indicative new pedestrian/cycleway connection shown on Figure 5. However it does not show the indicative new public road (shown on Figure 5) between the built form and the front of the vacant site.

43 The site plan [Drawing No. DA01 in Exhibit A] shows that the southern boundary of the site is situated about 10 or 11 m from the Parramatta River foreshore. There was no suggestion that this is incorrect and hence the 15 metre wide strip of existing open space in Fig. 7 must be interpreted as being 10 m. The site plan also shows a 20 m foreshore setback line that is parallel to and 10 m inside the site. It is within this 10 m setback that the 6 m wide road is located. The corners of the west and east proposed buildings are positioned just to the north of this setback line although the majority of the buildings are positioned much further to the north - the centre building is setback about 30 m reflecting the amphitheatre footprint of the three buildings.

44 Miss Morrish was concerned that, by failing to meet setback requirements the proposed development does not meet the public space requirements associated with the future character of these precincts. Adequate setbacks have not been provided thus failing to ensure the provision of landscaping and high-quality spaces. Because the buildings are not sufficiently setback from the foreshore this forces the new road closer to the foreshore edge thus capturing an area intended as public foreshore land. Mr McMahon disagreed explaining that the development achieves the objectives and desired future character by providing a public road between the development and the foreshore and providing a new public waterfront place, notwithstanding that this is separated from the foreshore by the proposed road. The suggested 10m increase in the setback would be unnecessary and unreasonable as it will not create any increase in the functional open space of the area and will not contribute to any further achievement of the character objectives.

45 The future character statement in the master plan encourages the contribution of private development to the public space and landscape setting but does not seek the dedication of such space or provide for the acquisition of it. In my opinion it is unreasonable to expect that private development should provide public open space without compensation. Conversely, it is not unreasonable for a private development to respond to planning controls by providing a landscaped open space setting that contributes to the public domain. Whilst it would have been preferable for the central landscaped area within the site to be contiguous with the public open space along the foreshore the master plan plainly shows (notwithstanding that it is not shown on the cross section) a road between the foreshore setback area and the discontinuous building edge and the applicant cannot be criticised for producing a design that responds to this. Of course the road provides a restriction between the site and the open space comprising the foreshore reserve but I do not accept that this is so restrictive as to deny the public link sought by the Master Plan.

46 Overall, I agree with Mr McMahon that the building setbacks are satisfactory especially taking into account the amphitheatre footprint of the buildings. Whilst the corners of two of the buildings are positioned just to the north of the setback line the development provides a significant visually contiguous area of open space that, in my opinion, meets the objectives of the Master Plan. Despite the road, I am satisfied that, taking into account the landscape plan, this area will appropriately integrate with the foreshore reserve.

Conclusions

47 In the circumstances and having considered all of the evidence I have been persuaded that the proposal is appropriately and sufficiently responsive to the Master Plan's framework, strategic intent and principles as to achieve the necessary consistency as required by clause 72ZB of the PSO. I have therefore decided that the appeal should be upheld and conditional development consent granted.

Conditions

48 The applicant proposes that the respondent's deferred commencement conditions in relation to drainage and road construction be deleted and replaced with standard conditions. The effect of these conditions has otherwise been essentially agreed. Having considered the submissions provided by the parties on 5 and 12 March 2007 I have decided that the deferred commencement conditions as sought by the respondent should be imposed. I have so decided because I agree that given that the works in part involve council owned land there should be certainty as to Council's involvement. In this regard I have been persuaded by the respondent's submissions that because the works are works for which a construction certificate would be required, deferred commencement conditions are necessary to achieve this. Hence deferred commencement conditions 1 and 2 and the respondent's version of conditions 15 and 69 are retained. Conversely I agree with the applicant's submissions that a deferred commencement condition is not required in relation to the Shell pipeline.

49 I also agree that the applicant's condition 163 effectively and appropriately maintains the status quo in relation to the effect of the pipeline easements on the subject site. Hence the respondent's conditions 163 through 165 are deleted.

Orders

50 The orders of the Court are therefore:

1. The appeal is upheld
2. Development Application No. 525/2004 for the construction of three, four-storey residential flat buildings above a common basement at 146 Bowden Street Meadowbank is determined by the granting of development consent subject to the conditions in Annexure A hereto.
3. Exhibits 1, 12, 13, A, E, F and G are retained.

___________________

T A Bly
Commissioner of the Court
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