Deeban Walk Pty Limited v Sutherland Shire Council
[2000] NSWLEC 42
•03/16/2000
Land and Environment Court
of New South Wales
CITATION: Deeban Walk Pty Limited v Sutherland Shire Council [2000] NSWLEC 42 PARTIES: APPLICANT
Respondent
Deeban Walk Pty Limited
Sutherland Shire CouncilFILE NUMBER(S): 10810 of 1999 CORAM: Cowdroy J KEY ISSUES: Development :- Deemed refusal - residential flat building - development standards - non-compliance - SEPP 1 objections - environmental impacts LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C CASES CITED: Lavender View Regency Pty Ltd v North Sydney Council (no 3) (1997) 95 LGERA 420;
Legal & General Life Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192DATES OF HEARING: 15/2/00, 16/2/00, 17/2/00, 18/2/00 DATE OF JUDGMENT:
03/16/2000LEGAL REPRESENTATIVES:
APPLICANT
Mr B Preston SC with Mr A Panuccio (Solicitor)SOLICITORS
Phillips FoxRESPONDENT
SOLICITORS
Ms S Duggan (Barrister) with Mr G Christmas (Solicitor)
Sutherland Shire Council
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 10810 of 1999
CORAM: Cowdroy J
DECISION DATE: 16/3/00
Applicant
Respondent
Background
1. In these proceedings Deeban Walk Pty Limited (“the applicant”) appeals against the deemed refusal by Sutherland Shire Council (“the council”) of development application no 553 dated 19 August 1999. The development application relates to the proposed construction of a residential flat building upon land known as Lot B in DP No 359748 and Lots 161 and 162 in DP No 613813 at an address known as 14 - 18 Deeban Walk, Cronulla (“the site”).
2. The proposal involves an amalgamation of titles, a demolition of two dwelling houses and a two storey residential flat building containing eight units. In place of the existing structures the development application proposes the erection of a 58 unit building comprising seven residential levels constructed over two basement levels. Car parking is to be provided in the basement for 99 vehicles, 87 spaces of which are designated for residents and 12 for visitors. The housing mix in the proposed building is 41 two bedroom units and 17 three bedroom units. Access to the units would be by way of walkways leading from lift wells and staircases, each of which are located along the northern side of the proposed building and are supported therefrom. The design proposes the erection of two buildings separated by landscaping. The development proposal is hereunder referred to as the “development”.
3. The site covers an area of 4,595 m2. The site does not have a frontage to any formed public street but has access via two separate rights of way from Burraneer Bay Road.
4. One right of way which currently provides access to the site is 6.7 m wide and traverses the land known as no 8 - 12 Burraneer Bay Road. A three storey brick residential flat building is erected thereon which is owned by the Department of Housing, (hereafter referred to as “the Housing Department flats”). To the south of that building lies a second and narrower right of way to the subject site which also traverses land owned by the Department of Housing.
5. Deeban Walk is a public but un-formed road located to the east of the site beside a public reserve known as Tonkin Park. The site slopes to the east with a fall from the north and west. The site has spectacular views over Gunnamatta Bay. Cronulla Primary School adjoins the site on its southern boundary. Immediately to the north of the site lies “Baharma Court” a six storey home unit complex comprising two buildings.
Zoning
6. The site is zoned Residential 2(c) under the provisions of the Sutherland Shire Local Environmental Plan 1993 (“the LEP”) and is located in an area known as precinct 5A. In such zone residential flat buildings are permissible with the consent of the council. The objective and description of the zone are contained in cl 18 of the LEP as follows:-
1) Objective of the zone
A higher density residential environment free from any adverse impacts of commercial and industrial uses, characterised by high density housing which is compatible with the natural environment and the surrounding residential zones.
2) Description of the zone
This zone is characterised by 3 storey residential flats. In some suitable locations, higher buildings will be permitted. This zone is located close to district shopping centres and public transport nodes. Council will require land to be developed in an economical way to reduce the instances of isolated parcels being left with little development potential.
7. Clause 23 of the LEP requires the council to be satisfied that the applicant has considered numerous matters relating to the amenity and impact of the proposed development. The relevant considerations being as follows:-
(a)
the impact that the proposed development may have on adjoining development from loss of sunlight, view and privacy;
(b) the effect of the proposed development on the quality of the streetscape;
(c) (not relevant)
(d) (not relevant)
(e) the retention and enhancement of significant existing vegetation;
(f) any adverse impacts on the natural and built environment;
(g) (not relevant)
(h) the impact that proposed development may have on any public area or waterway from loss of sunlight, view and visual amenity.
8. A development control plan entitled Residential Flat Development Control Plan (“the DCP”) was adopted by council and came into effect on 18 November 1997. The purpose of such plan is to ‘ provide appropriate objectives and standards for the development of residential flat buildings in the Sutherland Shire’ (cl 2). Various criteria are contained in the plan as considered hereunder.
9. In 1993 the council proposed to adopt a development control plan for the Cronulla precinct but the proposed plan was abandoned. The applicant relies upon the fact that had such plan been adopted would have been to its distinct advantage at least in relation to height control and floor space ratio (“FSR”).
10. The council has tendered in evidence the Draft Sutherland Shire Local Environmental Plan 1999 (the “draft LEP 1999”). It has been adopted by council but not yet gazetted. Section 79C(1)(a)(ii) of the EP&A Act entitles the Court as the consent authority, to consider the draft LEP 1999 where relevant.
11. The applicant’s appeal is opposed by council for reasons identified in the Statement of Issues. The issues relate predominantly to floor space ratio; height; landscaping; street frontage; overshadowing; bulk and scale; visual impact; set-backs; internal amenity; and over-development. The applicant has made State Environmental Planning Policy No 1 (“SEPP 1”) objections in relation to FSR, landscaping and street frontage. In the Court’s consideration of such objections, the test adopted is whether a development although not complying with the relevant standard ‘ nevertheless satisfies the underlying purpose of such standard’ (see Lavender View Regency Pty Ltd v North Sydney Council (No 3) (1997) 95 LGERA 420 at 423, 425, 426; Legal & General Life Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202).
SEPP 1 Objections
i) Floor Space Ratios
12. Clause 22 of the LEP provides as follows:-
(1) The objective of the floorspace ratio controls for each of the residential zones is to achieve a scale of development which is compatible with adjoining housing and which respects the existing character and streetscape of each of the residential zones.
(2) The objectives of the landscaped area controls for each of the residential zones are to:
(a) ensure opportunities for tree retention and tree planting to preserve and enhance the tree canopy of the Sutherland Shire.
(b) provide suitable outdoor recreation and garden areas for all residential development; and
(c) contain urban runoff flows by minimising the impervious areas on residential development sites.
13. Clause 22D(2) of the LEP provides inter alia that all development in the zone is to have a floor space ratio (“FSR”) of 1:1. By virtue of cl 10 of the DCP the maximum FSR applicable to development in the 2(c) Residential zone is also 1:1. The floor space ratio proposed for the development is 1.66:1 which exceeds the standard by 0.66 equating to 300 m2 of gross floor area.
14. The applicant raises numerous factors which are claimed to justify a relaxation of the standard including the circumstance that the site is not utilised presently to its full potential; that it is located in close proximity to Cronulla railway station and that it is served by existing infrastructure which can service such a development.
15. The applicant claims that the proposed development would increase housing supply and choice and promote social and economic development. The applicant also relies upon the fact that the 1993 draft plan, if adopted, would have allowed a FSR of 1.2:1. Such plan however, has never been, nor is to be adopted by Council and is accordingly of no effect.
16. Mr Nash a consultant town planner engaged by the council testified that there was no justification to support the SEPP 1 objection concerning the non-compliance with FSR requirements. The shortfall arose directly in consequence of the excessive gross floor area proposed.
17. The objectives set out in the LEP seek to ensure high density housing ‘ compatible with the natural environment in the surrounding residential zones’ . The proposed development does not achieve this objective.
18. The applicant, by virtue of its request to exceed the FSR by 66% is in effect seeking dispensation to create a building which is an overdevelopment of the site. No justifiable reasons have been demonstrated to warrant such concession. The Court accordingly does not allow this SEPP 1 objection.
ii) Landscaping
19. Clause 22D(2) of the LEP provides that all development in the zone is to provide a minimum of 65% of the site as landscaped area. The council maintains that 55% of the site is available for this purpose but the claimant asserts that 65% is allocated. On the applicant’s interpretation of the definition of landscaping it satisfies the 65% requirement if areas beneath the balcony, planter boxes beside the walkway and the meditation area were included. The applicant submits that it should not be disadvantaged by reason of such discrepancy.
20. Clause 6 of the LEP contains a definition of ‘Landscaped Area’ as follows:-
Landscaped area means that part of a site which is not occupied by any building and is available for use and enjoyment by the occupants of the building erected on the site. It includes areas used for open-air recreation areas, gardens, lawns, shrubs or trees, but does not include areas used for driveways, parking areas, drying yards, garbage storage areas or swimming pools.
21. Mr Darrell McLean, a landscape consultant for the applicant gave oral and written evidence of the landscaping proposals. He explained that at the Burraneer Bay Road entrance, native trees would be planted providing the beginning of a sequential landscape. Existing large gum trees (identified as 3 and 2 on the landscaping plan prepared on behalf of the applicant) would form an important feature and lead to an area known as the ‘water garden’ which comprises two zones. The first zone would comprise a rainforest to provide a passive recreation area for residents. It would be complemented by a hedge and meditation area with an aspect to falling water. A second zone known as ‘open savannah’ being a paved area, would have a flexible recreational use. Native grasses would be planted in the waterways and native shrubs provided against lift shafts and walkways. Beside the walkways would be terrace planters in planter boxes.
22. Adjacent to the Deeban Walk boundary, the ‘water feature’ becomes a ‘delta’ flowing into Gunammatta Bay. A moat would be provided around the final stairway of the boardwalk with cascades to Deeban Walk. It is intended to provide an aesthetically pleasing feature for the public as well as residents. For this purpose a walkway would be provided, following the line of Deeban Walk.
23. Mr McLean considered that a high quality landscape would be produced resulting in part from the calming presence of water and boardwalks. The proposal takes into consideration the existence of the adjacent public reserve which could be used for active recreation.
24. Mr Bungey, an environmental officer employed by the council with qualifications in landscaping gave detailed evidence both orally and in writing concerning landscaping deficiencies. The areas of contention which he did not consider qualified as ‘landscaping’ were space beneath balconies and a roof-top terrace. A degree of uncertainty existed concerning the provision of landscaping in relation to certain planter boxes. In his opinion pursuant to the definition in cl 6 of the LEP, ‘landscaping’ was required to be open to the sky. Accordingly, spaces which were overhung by building work did not qualify. He regarded the roof area as unsuitable for vegetation because of its southerly exposure. Mr Bungey also expressed doubt that seven existing trees on the site identified by the applicant for retention could be saved. Such trees were large gums which in his opinion, were at risk not only in the construction stage but also due to adverse changes in natural sub-soil drainage thereafter.
25. Mr Bungey considered that the ‘water feature’ was inappropriate and of limited use for a variety of reasons. It could not be used for recreation and would be a safety hazard. In his opinion the proposed ‘meditation area’ and walkway located through the site in an east-west direction was also of very limited use. Mr Bungey believed the proposals fell short of both the quantitative and qualitative objects of cl 22 of the LEP.
26. Whilst dispute remains concerning the degree of compliance, the LEP definition of ‘landscaping’ refers to ‘ that part of a site which is not occupied by any building’ and refers to areas for ‘ open-air recreation to include gardens, lawns, shrubs or trees’ . The meditation area is the only area which would clearly satisfy the requirement. Significantly, areas for driveways, parking areas, drying yards, garbage storage areas and swimming pools are excluded. Taking into consideration such definition, the council has been generous in including in its calculation of landscaping the walkways, granite paved area and pools comprising part of the water feature, yet a shortfall in the required landscaped area remains.
27. Landscaping is an integral characteristic of any such development. Landscaping should assist the visual transition between the development and the surrounding environs and serve the purpose provided by the LEP, namely to provide usable space (see cl 6 of the LEP). The evidence demonstrates that the applicant’s landscaping proposal is deficient, both in the provision of usable space and in the amelioration of the excessive bulk and scale of the development. Accordingly there is no justification for allowing this SEPP 1 objection.
iii) Minimum street frontage
28. Clause 22D(3) of the LEP provides:-
3) A minimum site area of 1200 sqm and a minimum street frontage of 25 metres will apply for a residential flat, townhouse or villa house development.
29. The applicant submits no conforming development on the site could be constructed if the 25 m frontage requirement of cl 22D(3) remains. It points to the fact that the most recent draft LEP 1999 abandons this requirement.
30. The matters surrounding this objection are of little consequence given the rejection of the principal SEPP 1 objections in relation to FSR and landscaping. For this reason the Court finds it unnecessary to make a determination of this SEPP 1 objection.
Non-compliance with DCP
i) Height limits and overshadowing
31. Clause 21 of the LEP relevantly provides:-
1) The objectives of the height limits are to:
(a) achieve a scale of development which is compatible with existing housing; and
(b) minimise impacts from development on loss of privacy, overshadowing and views.
2) Except for housing for aged or disabled persons and in the 2(c) Residential zone, all development must not exceed a height of:
a) 7.2 metres to any point on the uppermost ceiling;
- and
b) 9 metres to the highest point on the roof.
3) In the 2(c) Residential zone, council must consider the height limit specified in any development control plan applying to the land.
4) (not relevant).
32. The DCP contains provisions relating to height as contained in cl 9 thereof:-
For the purposes of Clause 21(3) of Sutherland Local Environmental Plan 1993 as amended the maximum height for a residential flat development is three storeys unless otherwise specified in a site specific Development Control Plan.
33. The applicant relies upon the 1993 draft plan (not adopted by council) which allowed for a height limit of six storeys. However as stated above the plan is of no effect.
34. Mr Nash testified that he had considered the compatibility of the height of the development with regard to Baharma Court and other flat buildings in the area. Baharma Court was constructed in 1959 before the introduction of contemporary planning controls. In his opinion it should not therefore be used as the benchmark for development.
35. Mr Nash stated that the proposed building would be situated approximately 12 metres from the balconies at the rear of the Housing Department flats. Not only would this cause severe overshadowing but any views to the south and the east currently enjoyed by the residents of the flats would be obliterated. He stated also that there would be severe overshadowing on a large portion of the adjoining school playground particularly during mid-winter. Mr Nash testified that the residents’ views from Baharma Court to the south over Gunnamatta Bay would either be totally or substantially lost. In addition, he considered that the height of the building would generate a ‘canyoning effect’ thus creating an increase in current noise levels. In conclusion, Mr Nash expressed the opinion that ‘ the proposal represents a gross overdevelopment of the site with detrimental impacts on the future amenity of the adjoining properties, including the Cronulla Public School’ .
36. The applicant contends that in order to have access to sunlight any built form would need to be located on the southern side of the site, which would inevitably result in the overshadowing of neighbouring properties. Mr Albon consultant town planner who gave evidence for the applicant, considered that the existing school grounds were sufficiently extensive to enable a choice of space for the use of pupils. Accordingly he claimed the loss of sunlight resulting from the development would not necessarily result in loss of amenity.
37. The proposed height would clearly not be compatible with the amenity of the existing environs, and would impact adversely upon adjoining properties in respect of loss of views and sunlight. The Court considers that the provisions of the DCP should be adhered to.
ii) Setback
38. Clause 11 of the DCP contains formulae to calculate minimum setback of buildings from boundaries. Adjacent to Cronulla Public School the development would result in a setback of between 1.45 m and 3 m. The DCP requires a minimum setback of 18.8 m to 21.3 m.
39. In relation to the Housing Department flats, the setback under the proposal would be 3 m whereas the DCP standard requires 6.7 m. From Deeban Walk, the required setback is 8.86 m, whilst 3 m is proposed.
40. Setback is inextricably linked to both the overshadowing of and loss of visual amenity to the adjoining properties. For these reasons the Court concludes that council’s requirements contained in the DCP should be observed.
Additional s 79C considerations
i) Scale and Bulk
41. Mr Angelo Falato, an environmental assessment officer employed by the council and qualified as an architect expressed several specific objections regarding the height and bulk of the proposal namely that it created severe overshadowing upon the adjacent school yard; its curvlinear design would give the appearance of being higher than Bahama Court with the upper levels being wholly inconsistent with that building; when viewed from Deeban walk or Tonkin Park the development would give the impression that no separation existed between the buildings.
42. Professor Neville Quarry, an architect and expert witness for the applicant testified that both Baharma Court and the development comprised buildings of similar scale, although differences existed in appearance. He considered that there was a relationship of scale as one looked east between the Housing Department flats and the existing buildings, and that the form of the proposed building would provide an interesting development. He observed that the size of the proposed development was compatible with the bulk of Baharma Court and said that several measures such as choice of building materials, colours, set-backs, and use of glazing could ameliorate the effect of such bulk. Professor Quarry considered that the existence of the separated and elevated walkways on the proposed building would also be an effective way to reduce bulk from the rear block of Baharma Court. He commended the design.
43. Mr Jones, architect for the applicant agreed with these measures and also explained that the design of the building with the prow-shaped form would be compatible with surrounding buildings. Viewed from the Gunnamatta Bay Boat Ramp Area, the design sought to achieve a height and mass consistent with Baharma Court. The sharp edge of the building is designed to act as a rotational function or pivot and intended to create a continuity with the landform. He said that the eastern face of the proposed building would be constructed to conform with the existing faces of adjoining buildings. As to the scale of the surrounding buildings Mr Jones regarded them as being consistent because of the ‘stepping up’ design of the storeys and the height of the surrounding buildings. To achieve a scale relationship he explained that it was not necessary to find similarity in the number of floor levels.
44. The development would be two storeys higher than Baharma Court, thereby creating the appearance of enormous bulk with a virtually sheer southern wall seven stories in height. Whilst Mr Jones considered that the appearance of the south wall would be mitigated by the use of glass and diagonal configuration of the units, these measures would not be adequate to negate the visual impact of the development.
45. There is an existing ambience on the west side of Tonkin Park which could be enhanced by an appropriate development on the site. At present the height of Baharma Court is ameliorated from public areas by the backdrop of trees which are growing on the site.
ii) Visual impact and view loss
46. A view confirmed the topography and natural beauty of the site. Visual links from both public and private land were considered. A visual corridor presently exists through the right of way adjoining the Housing Department flats in an easterly direction, from which can be seen in the middle distance and beyond trees the far side of Gunamatta Bay. Such visual amenity would be eliminated by the development.
47. Mr Nash stated that the development would be viewed as a six to eight storey building mass from Tonkin Park. The appearance of height and bulk would be exacerbated by the proposed building occupying 90% of the allotment’s frontage to Tonkin Park. Mr Nash considered that when viewed from Tonkin Park and Gunamatta Bay such visual impact would be significant and detrimental.
48. Mr Robert Albon who gave evidence in support of the applicant acknowledged that the view loss from Baharma Court would be significant. He acknowledged that a three storey building on the site would probably result in the retention of views from level four and above of Baharma Court.
49. Whilst unit blocks in Burraneer Bay Road and Searle Road largely have aspects to a central open space behind Baharma Court, the development would cause a substantial loss of views from the Housing Department flats. The development would entirely destroy the spectacular water views from all of the units in the rear block of Baharma Court. Accordingly the development would severely impact upon the visual amenity of the surrounding environment.
iii) Internal amenity of dwellings
50. Mr Nash explained that Unit 2 on the lower ground floor, Unit 6 on the ground floor and Unit 10 on the first, second and third floors were of poor amenity. Balconies are either overhung by balconies of units above or have space, (particularly in Unit 11) which is inadequate according to contemporary guidelines published in a guide known as ‘Better Urban Guidelines’ a publication of Department of Urban Affairs and Planning.
51. In view of the findings already made it is unnecessary for the Court to make any assessment of the internal amenity of the development.
Conclusion
52. The development is one which can only be implemented if concessions are granted to enable the applicant to depart from council’s standards. The applicant submits that the objectives of the standards are maintained, despite numerical non-compliance. However the applicant has not demonstrated that, “ strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the objects specified in section 5(a)(i) and (ii) of the Act’ . (SEPP 1 cl (3)).
53. The development would dominate Tonkin Park and the northern end of the foreshore. Its presence would represent an intrusive and discordant feature to the landscape. The development proposal has taken little account of the amenity of the surrounding properties.
Orders
54. The Court orders:-
1. The appeal be dismissed.
2. The Development Application No 553 dated 19 August 1999 for the proposed construction of a residential flat building upon land known as Lot B in DP No 359748 and Lots 161 and 162 in DP No 613813 at an address known as 14 - 18 Deeban Walk, Cronulla is determined by the refusal of consent.
3. The exhibits be returned.
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