De Witt v Lake Macquarie City Council
[2008] NSWLEC 1196
•6 May 2008
Land and Environment Court
of New South Wales
CITATION: De Witt v Lake Macquarie City Council [2008] NSWLEC 1196 PARTIES: APPLICANT
RESPONDENT
Bernie De Witt Consulting Pty Limited
Lake Macquarie City CouncilFILE NUMBER(S): 10036 of 2008 CORAM: Brown C KEY ISSUES: Development Application :- demolition of all existing structures and the erection of a private educational establishment - character/streetscape - amenity impacts LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 5, 6 /05/08 EX TEMPORE JUDGMENT DATE: 6 May 2008 LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Mr C McEwen SC
SOLICITORS
Sparke Helmore
Mr I Hemmings, barrister
SOLICITORS
Lake Macquarie City Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBrown C
6 May 2008
JUDGMENT10036 of 2008 Bernie De Witt Consulting Pty Limited v Lake Macquarie City Council
1 COMMISSIONER: This is an appeal against the refusal by Lake Macquarie City Council (the council) of DA/1697/2007 for the demolition of all existing structures and the erection of a private educational establishment at 6 Taylor Avenue and 8 Johnson Avenue, Barnsley (the site).
2 The council originally raised a number of separate contentions however, those relating to social impact (Contention 3), car parking (Contention 4), acoustic impacts (Contention 5), disabled access (Contention 6), and inadequate information (Contention 10) were not pressed by the council following the submission of amended plans and further information. The outstanding contentions related to the impact on the streetscape and character of the area and the impact on neighbouring development and the wider public interest.
The site and surrounding area
3 The site consists of Lot 1 in DP 929704 and Lot 3 in DP 2676. It is an irregularly shaped lot with frontages to Taylor Avenue and Johnson Avenue. The total site area is 8,096 sq m. The site is also subject to a transmission line easement.
4 The village of Barnsley consists of predominantly residential development on varying lot sizes. The properties surrounding the site have lot sizes in the order of 1,500 sq m with some larger lots. Other parts of Barnsley, with the same zone consist of individual lots of 330 sq m with dwellings generally constructed over two lots.
The proposal
5 The proposal is to demolish all existing structures and provide a number of buildings for the educational establishment. An administration building is located at the Johnson Avenue frontage together with a vehicular access for deliveries. A bus layback is located at the kerb in Johnson Avenue for picking up and dropping off students. Seven indented car parking spaces are also provided on the opposite side of Johnson Avenue to the site. A part one-storey but generally two-storey secondary school building is located along the western boundary with a setback of 5.8 m. A multipurpose hall is to be constructed on part of the northern boundary. It is part one and two-storeys and is located 4 m from the northern boundary. A single-storey primary school building is located along the eastern boundary with a setback of 1.8 m.
6 The central area formed by the proposed buildings and together with some areas that adjoin the eastern boundary are the play areas for the school. Staff car parking is located in an area off Taylor Avenue that accommodates 15 vehicles and also provides access to a loading bay adjoining the senior school building. A landscaping plan provides details for the landscaping of the site.
7 The student population will be a maximum of 130 students and all students will be bussed to the site or driven by private vehicles. The total number of staff is 15.
Relevant planning controls
8 The site is within the 2(1) residential zone under Lake Macquarie Local Environmental Plan 2004 (LEP 2004). Clause 16 provides that consent must not be granted unless the development is consistent with the relevant zone objectives (cl 16(b)).
9 The relevant zone objective is (b), which states:
- (b) provide for general stores, community service activities, or development that includes home businesses, whilst maintaining and enhancing the residential amenity of the surrounding area.
10 Schedule 2 of LEP 2004 provides subdivision standards. For the 2(1) zone, dwelling houses may be erected on a standard lot of 450 sq m or a battleaxe lot of 600 sq m.
11 Lake Macquarie Development Control Plan 1 (DCP 1) applies. Part 2.7 provides requirements for Streetscape and the Public Realm. Relevantly, pt 2.7.1 provides requirements for Streetscape and Local Character. The intent of Council's requirements is "the enhancement and creation of attractive, pleasant and safe streetscapes". Relevantly, the intent may be achieved where:
- Achieves an attractive setting with clear character and identity
- Respects and responds to existing streetscapes in established areas.
- The STREETSCAPE , built form and landscape:
12 Relevantly, the acceptable solution is:
- A1.1 Buildings and landscapes are designed to reflect the local context and the positive features of the prevailing character and streetscape.
13 Part 3.4 provides requirements for Housing - Building Siting, Form and Design. For Local Context, the Introduction states that:
- Development proposals will need to consider the locality in which they are to take place. This analysis which would incorporate the key natural and built features of the locality to inform the buildings design.
- All development must respond to the context of its locality and place by identifying the desirable elements of the areas, present character and its desired character. The requirements of any Area Plan must be met. New buildings should positively contribute to the character of the area and maintain its sense of place.
14 For front setback, the DCP states that the intent of the front setback is to complement “existing setbacks in the street and respond to the context of the locality”. (pt 3.4.1 P.1)
15 Side and rear setbacks are to be a minimum of 0.9 m, height is a maximum of 8 m or two storeys, and a maximum 50% site coverage for dwelling houses is required (pt 3.4.1 P.1).
16 The Court heard from local residents Mr Jason Johnson of 10 Johnson Avenue, Ms Sara Briggs of 2 Taylor Avenue, Mr Neil Thoroughgood of 2 Government Road, and Ms Lezette Callinan of 6 Johnson Avenue. Their concerns generally related to:
- the proximity of the school buildings to the side boundaries,
- the loss of privacy from windows and surveillance cameras,
- the enclosure of their properties by the erection of 1.8 or 2.4 metre high fencing,
- the presentation to Taylor Street,
- the impact on the animals kept on their properties,
- the impact of noise from the car park and school activities,
- the impact of proposed lighting, and
- the impact of additional stormwater runoff.
17 Mr Ian Adams, a town planner, and Dr Richard Lamb, a visual impact consultant, provided evidence for the council. Mr Dan Brindle, a town planner, provided evidence for the applicant.
- Existing and anticipated streetscape/ character
18 The consideration of impact on the streetscape and character of the area required by the DCP requires an assessment of the existing streetscape and character, and also that anticipated by the council’s planning controls.
19 With a benefit of the site view, the existing character of the surrounding area is made up of modest single-storey residential dwellings on large lots of differing setbacks but all located near the street boundary. There is a generally large separation between existing dwellings. The lots surrounding the site have areas of 1,948 sq m, 1,600 sq m, 3,598 square metres, and 1,505 sq m. The common boundary fencing consists of relatively low strained wire or open style fencing that allows easy viewing over the lots. Most properties have animals such as goats, chickens, sheep, Shetland ponies and dogs, but at a domestic scale. There is a rural feel to the area surrounding the site. The evidence of the residents who reside in this area was that this rural character was highly regarded and an important reason for purchasing properties in this area.
20 The site sits between the 1(2) rural zone to the east and more dense single residential development to the west (see par 4), notwithstanding that the different density of residential development is within the same zone.
21 The requirements in LEP 2004 and the DCP, however, anticipate a different character. Whilst the minimum lot size for the 2(1) zone is 450 sq m for a standard lot, there was general agreement between Mr Adams and Mr Brindle that the site could be developed for dwelling houses to accommodate 8 or 9 lots. A potential residential development of 6 lots was also mentioned. While accepting the difficulty in their assessment of the potential subdivision under the DCP without any notice, I am satisfied that this is a reasonable development yield for the purposes of this appeal considering the size of the site, the existing easements, and the LEP 2004 and the DCP requirements. Given the generally rectangular shape of the usable area of the site (that is, excluding the area subject to the easement), 3 or 4 lots would likely be located along each of the eastern and western boundaries with a central access road.
- Findings - streetscape/ character
22 As a starting point, it must be acknowledged that an educational establishment is a permissible use within the 2(1) zone. It must also be acknowledged that an educational establishment will take a different form to that of residential development. This, however, does not mean an approval should not be granted simply as it will have a different form to residential development. It means that the particular characteristics of the educational establishment need to be considered through s 79C of the Environment Planning and Assessment Act 1979, LEP 2004 and the DCP.
23 With the benefit of the site view, I do not accept that the proposal could, in the words of the DCP, be said to respect and respond to existing streetscape and established areas or achieve an attractive setting (pt 2.7.1.of the DCP). I also do not accept that the proposal reflect(s) the local context and the positive features of the prevailing character and streetscape.
24 The existing dwellings in Johnson Street sit in a relatively wide frontage that provides space around each dwelling and large separation distances between dwellings adjoining lots. If measured against a hypothetical residential development of the land that would likely have two dwellings at the Johnson Street frontage (to allow access to the rear of the lot) the administration building would be inconsistent with the streetscape anticipated by the DCP.
25 I acknowledge that the recent amendments to the administration building have improved the streetscape appearance from Johnson Avenue however, I agree with Dr Lamb that it is still unacceptable. If the building form and appearance is combined with the range of features proposed at the Johnson Street frontage, such as the 2.4 m high palisade fencing, the indented bus bay, the indented on-street parking and the footpath paving, then the development clearly unacceptably distinguishes itself from the existing and likely residential streetscape and character of Johnson Avenue and the wider area.
26 I agree with Mr Adams that the issue of the setback is not necessarily a question of the actual numerical distance, but the length and massing of the building on the setback line. The administration building occupies some 42.7 m, (including its verandah’s) of the 54.36 m frontage and even though part of the administration building is now single storey, in my view, it still creates an uncharacteristic and imposing feature in the streetscape.
27 The impact on the character of the area, in my view, is also unacceptable, both when measured against the existing character and also if measured against the likely residential development of the land (see par 22). The secondary school and junior school buildings are simply too close to the common boundaries with the adjoining properties. In saying this, I am satisfied that the design of the proposed buildings, per se, is acceptable however it is their siting and size that creates unacceptable impacts on the adjoining properties.
28 While comparisons were made with the numerical standards in the DCP for height, setback and site coverage, I do not accept that this is a valid comparison even though the proposal generally satisfies these requirements. The length, bulk and siting of the buildings close to adjoining properties, would likely be inconsistent with the form of development that could be anticipated with the residential development of the site. For example, it would be most unlikely that new single storey residential developments would be located 1.8 m from the common boundary of adjoining lots (and have the extent of roof form) or that a two-storey building some 37 m in length would be located 5.8 m from the common boundary.
29 Even though attempts have been made to breakdown the bulk and massing of the buildings through articulation and landscaping, I do not accept that these measures have been overly successful. The attempts to breakdown the bulk of the two-storey building by creating breaks in the elevations will only be noticeable when viewed directly opposite these breaks. In other locations the buildings will appear as a single structure. I do not accept that landscaping should be used to hide unsuitable buildings forms when there are fundamental problems with the citing of the buildings.
30 The need for a 2.4 m high fence to provide acoustic protection to the adjoining property at 6 Johnson Avenue is a further indication, in my view that the site cannot accommodate the proposed development. The need for a fence of this height, if only for a length of some 12 m, is an unacceptable impact on the amenity of this property as it creates a bulk and overbearing impact that would not reasonably be expected in any reasonable residential development of the site.
31 While the rural vista is clearly much appreciated by the local residents, I accept that it is not a feature that is likely to be retained with any residential development of the land. Fencing would be a fundamental component of any development of the site and as I understand, a 1.8 m boundary fence can be constructed at any time, without the consent of council, being complying development under LEP 2004. For this reason, I have not taken the existing rural vista and lack of solid fencing into consideration in my assessment of the impact on the character of the area and the amenity of the adjoining properties.
32 Putting aside the matters of character, streetscape and amenity addressed earlier, I am satisfied that the issues of overshadowing and overlooking would not be matters that would warrant the refusal of the application. Similarly, I accept the traffic issues can be addressed through appropriately worded conditions.
33 For the reasons mentioned previously on character, streetscape and amenity, I find that the proposal is inconsistent with its zone objective (b) in that it does not maintain or enhance the residential amenity of the surrounding area and as such, development consent cannot be granted.
34 On this basis, it is not necessary to deal with the issue of the adequacy of the playground areas raised by Mr Adams.
35 In submissions, Mr McEwen SC urged the Court to adjourn the proceedings if there were matters that could be amended to overcome any concerns of the Court however I am unable to accede to this request. There is a fundamental problem with the extent of proposed development and the area available to accommodate it. I am satisfied that there are no amendments that could be made, as part of these proceedings, that would address this problem.
36 The Orders of the Court are
3. The exhibits are returned.1. The appeal is dismissed.
2. DA/1697/2007 for the demolition of all existing structures and the erection of a private educational establishment at 6 Taylor Avenue and 8 Johnson Avenue, Barnsley is refused.
___________________
- G T Brown
Commissioner of the Court
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