Derwent Property Pty Ltd v Wollongong City Council

[2016] NSWLEC 1010

Land and Environment Court

New South Wales

Medium Neutral Citation:	Derwent Property Pty Ltd v Wollongong City Council [2016] NSWLEC 1010
Hearing dates:	1-2 December 2015
Date of orders:	12 January 2016
Decision date:	12 January 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	1. Appeal upheld 2. Development Application DA-2013/1447 for the construction of multi housing development and associated works on Lot 2 DP 1187142 at 10 Derwent Avenue, Penrose, is approved subject to conditions of consent in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION: Multi-dwelling housing; acoustic amenity, communal open space, tree retention, site context and design
Legislation Cited:	Environmental Planning and Assessment Act 1979 Water Management Act 2000 State Environmental Planning Policy (Infrastructure) 2007 Wollongong Local Environmental Plan 2009
Category:	Principal judgment
Parties:	Derwent Property Pty Ltd (Applicant) Wollongong City Council (Respondent)
Representation:	Applicant: Mr I Hemmings SC (Barrister) Respondent Mr R O’Gorman-Hughes (Barrister) Solicitors: Applicant: RMB Lawyers with Morton & Harris Respondent: Wollongong City Council
File Number(s):	10437 of 2015

Judgment

1. COMMISSIONER: The applicant appeals Wollongong City Council’s refusal of Development Application DA-2013/1447 for the construction of multi-dwelling housing and associated works on Lot 2 DP 1187142 at 10 Derwent Avenue, Penrose (the site).

2. The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

The proposal and relevant background

Relevant background

3. The development application was initially lodged with council in November 2013. Following submissions, assessment and consultation, the plans were amended in March 2014. These were renotified.

4. After further requests for information, the plans were amended again and further information was supplied in August 2014. The further amended plans were renotified.

5. After assessing the proposal in accordance with s 79C(1) of the EPA Act, council’s assessment staff recommended approval subject to conditions. The report concludes in part:

All relevant external and internal referrals are satisfactory and there are no outstanding issues.

The main issues resulting from the assessment are considered to have been adequately addressed and the measures provided that form part of the proposal subject to appropriate conditions of consent are acceptable.

The proposed development has been designed appropriately given the constraints and characteristics of the site, is not inconsistent with the existing and desired future character of the locality and is unlikely to result in significant adverse impacts on the amenity of the surrounding area.

It is recommended that approval be granted to DA-2013/1447, subject to the draft conditions provided at Attachment 5.

6. In December 2014 the application and the assessment report prepared by council’s City Wide Planning Team was considered by council’s Independent Hearing and Assessment Panel (IHAP). The referral to the IHAP was triggered by the fact that the proposal, being for five or more dwelling units, received five or more unresolved objections

7. Later that month, the IHAP recommended deferral of the application to enable the applicant time to address a number of additional matters. The issues raised by the IHAP include:

• Excessive amount of driveway which is inefficient and creates a hard character;

• No landscape relief or setback of dwellings from road network; should reflect some elements of its surrounding neighbourhood character;

• Failure to orientate buildings to the riparian area and to maximise outlook;

• Poor location of centralised garbage storage area;

• Location and irregular dimensions of the communal open space and deep soil zone; should be more generous, regular in dimension and centralised;

• Failure to retain groups of vegetation central to the site; this should inform the location of the communal open space;

• Double garages dominate the streetscape;

• Inadequate site analysis;

• Lack of pedestrian permeability.

8. The panel recommended that the proposal be redesigned to address the points raised, an urban design approach be taken, and a qualified urban designer be appointed to establish design principles for the site.

9. In February 2014 the applicant responded to the IHAP recommendations and in declining the suggestion to redesign the proposal noted that there were no matters of technical disagreement with the assessment contained in council’s report on the application.

10. In February 2015 the council engaged an urban design consultant, Mr Geoff Baker of HBO + EMTB Urban and Landscape Design, to review the application and IHAP recommendations. Mr Baker’s ‘Urban Design Review’ dated 19 March 2015 includes a number of design analysis sketches of the site and of modified housing types which, Mr Baker states, verify that design changes can be reasonably achieved and which, in his view, would significantly enhance the quality of the proposal.

11. In March 2015 the applicant provided a detailed critique of Mr Baker’s review and additional material including an amended site and landscape plan. Later that month the IHAP considered a number of documents including Mr Baker’s review and sketches, correspondence from the applicant and draft reasons for refusal. The Notice of Determination refusing the proposal was issued on 30 March 2015.

The proposal before the Court

12. The applicant proposes to construct a multi-dwelling development comprising 30 single storey villas and 14 two storey townhouses and a total of 97 parking spaces on Lot 2 DP 1187142.

13. Six layouts are proposed for the single story villas (unit types A-F). The townhouses are unit type G. Of the 44 dwellings proposed, 38 will be three bedroom and 6 will be two bedroom. Five dwellings are nominated as adaptable and capable of complying with the relevant standard.

14. Ten of the 14 two-storey townhouses are located along the southern boundary; the remaining four are located near the south-eastern corner.

15. Parking comprises 82 resident spaces, mostly within garages, 15 visitor spaces as well as motorbike and bicycle parking for residents and visitors.

16. The application also includes the construction of a footpath within council’s road reserve along Derwent Avenue and Oakland Close to an existing bus shelter on Avondale Road, the nearest main road.

17. The applicant proposes to construct the dwellings in two stages – Stage 1: units 1-24 and associated parking, access driveway, visitor bicycle parking, communal open space, deep soil planting, waste collection and garbage area.; Stage 2: units 25-44 and associated works, riparian and vegetation management works.

18. The proposed development is classified as integrated development as it requires a controlled activity approval under s 91 of the Water Management Act 2000 for works carried out on waterfront land, being land adjacent to the existing watercourse on the site.

19. The applicant proposes to carry out weed control and bushland restoration along the riparian zone in accordance with a Vegetation Management Plan (VMP).

The site and locality

20. Derwent Avenue is the southern arm of Oakhurst Close; it runs north/south and parallel to the main Illawarra rail line to the east. The site is a 1.9ha plot of land at the southern end of Derwent Avenue, at the end of an unformed cul-de-sac. Development in Oakland Close and Derwent Avenue is mostly low density residential characterised by one and two storey detached dwellings with unfenced and landscaped street frontages. In Avondale Road there are a number of multi-dwelling developments, some of which have been recently approved by council.

21. Adjoining the site to the east is the railway line; to the west is a creek which separates the site from the adjoining property at 23 Dale Street – this property contains a dwelling and a number of sheds and structures used for small scale farming/ nursery production. To the south is a medium density development of two storey residential unit blocks owned by the NSW Department of Housing, accessed off Manuka Avenue. The site shares its northern boundary with five properties in Derwent Avenue and Oakland Close.

22. The site is zoned R2 – Low Density Residential under Wollongong Local Environmental Plan 2009 (WLEP) and the railway corridor is zoned SP2 Infrastructure – Railway.

23. The site contains a few remnants of infrastructure associated with its former use for small scale farming, previously associated with the activities carried out at 23 Dale Street. The majority of the lot is overgrown pasture with trees and shrubs along the eastern, southern and western boundaries as well as a row of trees across the centre of the site – planted in an east/west direction. The riparian vegetation comprises mostly weed species.

The issues

24. Council contends that the proposed development should be refused for the following reasons (provided in Council’s Amended Statement of Facts and Contentions filed on 14 October 2015 – Exhibit 1).

1.   The proposal will not provide appropriate amenity for future residents: - poor internal and external acoustic amenity for dwellings along the railway corridor; poorly sited and poor quality area of communal open space; overshadowing of units 15-24.

2.   Inconsistency with elements of Wollongong Development Control Plan 2009 (WDCP): - location and dimensions of deep soil planting; insufficient retention of established trees – particularly those in the centre of the site; communal open space; solar access for private open space; landscaping, preservation of trees, proximity to the road and privacy; location of communal waste storage area; location of visitor and bicycle parking; pedestrian access and permeability; failure to respond appropriately to the site and context.

3.   Unsatisfactory amenity impacts arising from the staging of the construction.

4.   Adverse impacts on adjoining properties and residents within the locality: - traffic generation; location of communal waste collection point.

25. The applicant contends that the proposed development is fully compliant with the relevant controls and objectives in WLEP, Wollongong Development Control Plan (WDCP) and other applicable guidelines and should be approved.

26. The relevant controls are considered with each of the issues.

The hearing and evidence

27. The hearing commenced on site. A number of local residents raised a number of objections to the proposal; these are summarised as:

• The proposed development is too large and too dense and would be effectively twice as large as any other nearby multi-dwelling development; the pattern and density of development should be more like the existing pattern in Derwent Avenue.

• The only access to and from the site will be via Derwent Avenue; as the area is heavily dependent on cars this will mean increased traffic.

• The combined effects of lots of hard surfaces, tree removal, insufficient landscaping, inadequate communal open space and absence of sea breezes will contribute to poor amenity for future residents.

• The area is flood prone.

• Potential for odour and litter because of the location of the garbage collection and letter boxes.

28. Expert evidence was provided for the applicant by Ms Elaine Treglown (Planning), Mr Matthew Harwood (Acoustics), and Mr David Dowey (Traffic) and for the council by Mr Geoff Baker (Urban Design) and Mr Tim Rogers (Traffic).

29. The site was inspected and the parties and their experts inspected two nearby multi-unit developments at 26 and 118 Avondale Road.

30. In essence, the specific issues to be addressed can be summarised as: acoustic amenity, landscaping (inclusive of communal open space, tree retention, deep soil, private open space), traffic and parking (including bicycle parking), and waste collection area. The overarching issues appear to be that the proposal is inconsistent with the objectives of Chapter B1 WDCP and that the proposal fails to respond to adequately respond to the site and context and does not achieve the requirements in cl. 9 Chapter A1 WDCP.

Objectives B1 WDCP and response to site and context cl 9 Chapter A1 WDCP

31. The council contends that as a consequence of the specific issues raised, the proposal does not meet objectives for residential development (a), (b), (d) (e) and (f) in cl. 2 Chapter B1 WDCP and therefore results in substandard internal and external amenity for future residents. These objectives are:

(a)   To ensure a high standard of residential development within the City of Wollongong LGA

(b)   To encourage new development that is sympathetic to the existing streetscape and neighbourhood character of a particular locality.

(d)   To manage residential development in order to maximise the retention of significant remnant trees and other natural features in particular localities.

(e)   To encourage innovative housing design and energy efficient housing which embraces the highest possible architectural, environmental and amenity standards.

(f)   To promote residential development that achieves the principles of ecologically sustainable development.

32. Section 9 of Chapter A1 of WDCP identifies the key objectives in regards to the preparation of a site and context analysis in order to inform the design process. The relevant objectives are:

To ensure that a Site and Context Analysis is undertaken for sites subject of a development application.

To promote development with good design by ensuring the consideration of existing characteristics, opportunities and constraints of the site and its surrounds.

To ensure that consideration is given to all relevant site and locality issues in the formulation of development proposals.

To identify the minimum requirements for the preparation of a detailed Site and Context Analysis to lead and support the design proposal for development.

33. The evidence on these umbrella issues is discussed in the context of the specific issues.

Acoustic amenity

34. Contention 1 in the Amended Statement of Facts and Contentions states:

1.   The proposal will not provide appropriate amenity for future residents

Acoustic amenity

Particulars

a.   The Site is located adjoining the Illawarra railway corridor along its eastern boundary.

b.   The proposal fails to address the impact upon external private open space for these dwellings and open space that remains affected by rail noise. No measures have been provided to address this matter.

c.   The layout of the proposal fails to adequately respond to the context and constraints of the Site and will provide a substandard level of internal and external amenity for the future occupants of these dwellings.

d.   This includes placing bedrooms too close to the internal road network.

35. The Illawarra rail corridor carries both passenger and freight trains.

36. Clause 87 – Impact of rail noise or vibration on non-rail development in State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) applies to the site. Clause 87(2) requires the consent authority to take into consideration any relevant gazetted guidelines. Further, cl. 87(3) states:

(3)   If the development is for the purposes of a building for residential use, the consent authority must not grant consent to that development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded:

(a)   in any bedroom in the building – 35dB(A) at any time between 10.00 pm and 7.00 am,

(b)   anywhere else in the building (other than a garage, kitchen, bathroom or hallway) – 40dB(A) at any time.

37. The applicable guidelines are the NSW Department of Planning ‘Development near Rail Corridors and Busy Roads – Interim Guideline’ – 2008 (the Guideline). The noise criteria are consistent with cl. 87(3) SEPP Infrastructure. Clause 3.6.1 of the Guideline states in part that:

If internal noise levels with windows or doors open exceed the criteria by more than 10dBA, the design of the ventilation for these rooms should be such that occupants can leave windows closed if they so desire, and also meet the ventilation requirements of the Building Code of Australia.

38. Although tendered as Exhibit 10, and considered by way of an example in Mr Harwood’s contribution to the joint report, the NSW EPA ‘Rail Infrastructure Noise Guideline’ 2013 does not apply to this site as this is development to which cl. 87 SEPP Infrastructure applies (cl. 1.5(b)).

39. The council’s main concerns go to the acoustic amenity of the 18 dwellings located towards the eastern boundary and the rail corridor. The closest units to the rail line are units 2,4,6,8,10,13,14 and 15.

40. In their joint report (Exhibit 4), Ms Treglown, Mr Baker and Mr Harwood agree that the internal noise levels recommended by the Guideline are met, as referenced by a document ‘Clarification of Internal Train Noise Levels’ prepared by Mr Harwood and attached to the joint report. This is subject to the installation of an appropriate 1.8m high fence along the eastern boundary.

41. This document states that the closest bedrooms in units 1-18 have a predicted internal noise level, with windows and sliding doors closed, of between (Leq,9 hour) 31-34 dBA which complies with the (Leq,9 hour) 35 dBA recommended internal noise level in cl. 87 SEPP Infrastructure. Predictions based on the latest drawings and assuming windows and sliding doors may be partially open indicate that the closest bedrooms are at or below, but don’t exceed, the (Leq,9 hour) 45 dBA trigger level for ventilation. That is, as the noise levels with windows open will not exceed the internal noise criteria by more than 10 dB, the requirement in sub cl. 3.6.1 of the Guideline is not triggered. Mr Harwood states that the noise levels in all other rooms across the development will also be acceptable.

42. Notwithstanding this agreement, Mr Baker states that while the proposal meets the numerical standards for internal acoustic performance, he considers that it does not meet the site planning and design principles in the Guideline – in particular, sub cl. 3.8 – Avoiding Adverse Airborne Noise and Vibration Impacts by Good Design and does not demonstrate best practice.

43. In essence Mr Baker’s principal concerns go to the fact that all of the closest units have bedrooms and private open space on the eastern side rather than rooms such as bathrooms and kitchens that are less sensitive. In his opinion this is a very poor and unacceptable design outcome. In his Urban Design Review Mr Baker suggests that an alternative strategy would be the location of a series of abutting two storey “noise barrier” dwellings along the rail corridor boundary with openings away from the railway line, as suggested and illustrated in the figures accompanying c. 3.8.2 of the Guideline. He relies on the sketch plans in his review which include modified type ‘H’ units along the eastern boundary.

44. In response to particular (b) in contention 1, Mr Harwood reiterates the fact that the proposal complies with the SEPP and Guideline. He states that there is nothing in the SEPP or the Guideline that requires anyone to follow the generic advice on building design included in the Guideline. Mr Harwood considers that the day time and night time train noise levels at the site are very low when compared to busy roads or other rail lines, which in his opinion are the situations the Guideline seeks to address. He also notes that there is no requirement in the SEPP or elsewhere to address external noise levels from train traffic.

45. The fence was discussed during oral evidence. A lapped and capped timber fence or a solid metal fence with no gaps (except for a small gap at the base to allow for water movement) would reduce noise levels by 1-2 dBA. In Mr Harwood’s opinion the fence has a minor impact because the rail line is elevated above the ground level of the closest dwellings. In his opinion increasing the gap at the base from 20mm to 50mm to allow for surface run-off would have little if any impact.

38. In regards to particular (c) and the response of the design to the context and site, Ms Treglown opines that as the proposal complies with the controls it provides a satisfactory internal level of amenity for future residents. She also considers that the episodic nature and of the noise is such that external amenity will not be unreasonably affected. Given these factors Ms Treglown concludes that the development appropriately responds to its context and constraints.

39. Mr Baker disagrees and considers that individuals vary in their sensitivity to noise and the best way to ensure that the development minimises both internal and external noise levels is to follow the design principles in the Guideline.

40. In consideration of particular (d) the experts agree that traffic noise generated on the internal roads within the development is not an issue however, notwithstanding that agreement, Mr Baker considers there is still a privacy issue. [In his statement of evidence (Exhibit C) Mr Harwood states that the relevant criteria in cl. 102 - Impact of road noise and vibration on non-road development - SEPP Infrastructure only applies if the traffic count is >40,000 annual average daily traffic or if the road is a freeway, tollway or transitway.]

Landscaping

49. The proposal includes the retention of the majority of trees on the eastern and southern boundaries, an area of designated deep soil planting along the eastern boundary, weed control and revegetation of the riparian zone, compliant areas for planting of small trees at the front and rear of almost all units, larger street trees along the main extension of Derwent Avenue and elsewhere, and a triangular area of communal open space towards the southern portion of the site which includes a designated area of deep soil planting in its narrower western portion. The applicant proposes to remove the central row of trees which are identified in the arboricultural assessment as being in generally good to fair health and condition with a medium to long safe useful life expectancy. The trees include a row of Pecans inter-planted between a number of local species of Melaleuca, Eucalyptus and Casuarina.

50. The issue of ‘landscaping’ covers a number of council’s contentions and particulars including:

2.1a-h   Deep soil planting: (in summary) – three disjointed areas; eastern boundary does not provide a continuous minimum width of 6m and includes encroachments; drainage swale along eastern boundary cannot be densely planted with trees and shrubs and therefore can’t be included as deep soil; southern portion too narrow and irregular to maintain significant vegetation; does not facilitate the retention of the central row of trees which are in good health; the riparian zone planting does not, on its own, satisfy the requirements for the development; the proposed deep soil planting does not achieve the intent and purpose of the relevant development controls and objectives.

1a   The communal open space for the future residents of 44 dwellings is narrow, irregular in shape and abutted by hard surface. It is unsuitable for its intended purpose, and the poor quality of the open space proposed does not provide an appropriate level of amenity for future residents and visitors.

2.2a-h   Communal open space: (in summary) – the design limits where ancillary structures may be located within the space; not centrally located and therefore remote from dwellings, including the adaptable dwellings, on northern end; no paths or defined pedestrian linkages; does not capture the existing central row of trees; passive surveillance and safety as a consequence of the adjoining area of deep soil planting; whilst numerically compliant it does not adequately address the objectives.

2.3a-f   Private open space/ solar access: (in summary) – units 15-24 (type G) have south facing areas of private open space and do not receive 3 hours of direct sunlight on June 21; no shadow diagrams to demonstrate that the additional areas of private open space for these units receive the required solar access; these dwellings do not comply with the objectives in WDCP and provide poor amenity for future residents.

2.4a-I   Landscaping/ preservation of trees/ proximity to road: (in summary) – whilst providing a compliant 30% of the total area as landscaping the proposal has an excessive amount of hard paving which dominates the appearance of the development; little to no separation between internal edge of driveway and walls/private open space courtyards/ garages of adjacent dwellings; this results in an inability to plant trees, lack of privacy, reduced visual amenity, lack of pedestrian refuge areas and manoeuvring areas; there will be a significant difference between the character of this development and the existing development in Derwent Avenue; planting within the internal road network and courtyards is sparse; fails to achieve the outcomes of relevant controls.

51. The relevant provisions of Wollongong Development Control Plan 2009 (WDCP) pressed by council are:

5.8    Landscaping Requirements

5.8.1   Objectives

(a)   To enhance the appearance of housing through integrated landscape design

(b)   To improve the visual amenity by increasing the volume of substantial vegetation in urban areas.

(c)   To reduce impervious areas on sites and increase soft landscape screening between side orientations of residential developments.

5.8.2   Development Controls [relevantly]

1.   A minimum of 30% of the total area must be provided as landscaped area. Landscaped area is defined as ‘any part of the site which is not occupied by any building, basement or hard surface such as driveways, parking areas or paved areas of courtyards, decks, balconies or terraces. The landscaped area also includes landscaping on the podium…. Any landscaped area on the site which is less than 1.5 metres in width is not included within the landscaped area calculations.

5.9   Deep Soil Planting

5.9.1   Objectives

(a)   To protect exiting mature trees on a site and encourage the planting of additional significant vegetation.

5.9.2   Development Controls

1.   The siting of the deep soil zone shall be determined following a Site and Context Analysis to investigate whether this area should be located:

(a)   Centrally within the site to allow for overlooking from dwellings with a development;

(b)   At the rear of the site to allow for separation from adjacent dwellings and to provide a continuous corridor of vegetation for native fauna; or

(c)   Elsewhere within a site to allow for retention of significant trees and attain maximum access to sunlight.

2.   A minimum of half of the landscaped area (i.e. 15% of the site) must be provided as deep soil zone, where the deep soil zone is not located at the rear of the site. The deep soil zone may be located in any position on the site, other than forward of the building line, subject to this area having a minimum dimension of 6m. Alternatively, the deep soil may extend the full length of the rear of the site, with a minimum width of 6m. The area of deep soil must be continuous to ensure that the deep soil planting area is a singular uniform area and is not fragmented.

3.   No structures, basement carparks, driveways, hardpaving, decks, balconies or drying areas are permitted within the deep soil zone.

4.   The deep soil zone shall be densely planted with trees and shrubs. Where multi dwelling housing development is to be strata titled, the deep soil zone may be retained within in the common property or allocated to an individual unit entitlement where such dwelling is directly adjacent.

5.10   Communal Open Space

5.10.1   Objectives

(a)   To ensure that communal open spaces are of adequate size to be functional.

(b)   To provide communal open space which is accessible by all residents.

5.10.2   Development Controls

1.   Developments with more than 10 dwellings must incorporate communal open space. The minimum size of the open space is to be calculated at 5m2 per dwelling. Any area to be included in the communal open space calculations must have a minimum dimension of 5 metres. The communal open space must be easily accessible and within a reasonable distance from each dwelling, be integrated with the site landscaping, allow for casual social interaction, and be capable of accommodating recreational activities.

2.   Where a minimum of 15% of the site is provided as a deep soil zone, combined use of part of the deep soil zone as communal open space may occur. The combined communal open space/deep soil area may be grassed but must contain significant shade trees. A maximum of 1/3 of the required communal open space area may be combined with the deep soil zone.

3.   Areas of communal open space should contain paving, children’s playground equipment, barbecues, shade structures, swimming pools or the like, however these cannot be located within the deep soil zone.

4.   At least 50% of the communal open space must receive at least 3 hours of direct sunlight between 9.00 am and 3.00 pm on June 21.

52. Clause 5.11 considers private open space. Development Control 2(b) requires that the primary area of private open area for at least 70% of the dwellings within a multi dwelling housing development must receive a maximum of three hours of direct sunlight between 9.00 am and 3.00 pm on 21 June. The experts agree that this is achieved and contention 2.3 is no longer pressed. The applicant contends that 79-80% of the dwellings comply and there is a large setback on the southern boundary.

53. In their joint report, Ms Treglown and Mr Baker agree that the proposal meets the numerical requirements for deep soil and communal open space. They differ as to the location of these areas, and the achievement of other development controls and objectives.

54. In essence, Mr Baker considers that any deep soil area associated with communal open space should be integrated with, and form at least a significant part of, that communal open space and at least a significant part of that deep soil area should be accessible for passive recreation. He opines that the steep topography and dense planting of the riparian corridor makes it unsuitable for any use by future residents, in particular passive recreation.

55. Mr Baker’s principal issue is that the area of communal open space is not centrally located and does not incorporate the central row of trees. In the sketch plan in his ‘Urban Design Review’ Mr Baker illustrates his preferred centralised location with indicative pathways and access points which retains the majority of the centrally located trees [but appears to remove most of the trees along the southern and eastern boundaries]. Apart from not achieving the objective in 5.9(a) WDCP to protect exiting mature trees, Mr Baker considers that the proposed location towards the south unreasonably disadvantages the future occupiers of the dwellings on the northern boundary, including occupants of the accessible units. He calculates a distance of 160 m from unit #41. Mr Baker maintains that the communal open space should be the ‘social heart’ of the development and the proposed location is counter to this. He also considers that the communal open space does not include seating, play equipment or sufficient and safe space for children to kick a ball. Mr Baker is of the opinion that as the communal open space is surrounded by roads, this is unsafe, especially for small children who may chase a ball onto the road.

56. In regards to contention 2.4, Mr Baker agrees that the proposed housing type is obviously different to that of the existing detached dwellings in Derwent Avenue however he considers the location of dwellings hard against the internal driveways without any or only token setbacks is an extreme and unnecessary divergence from the character of Derwent Avenue. In his view the landscaping, although compliant, is sparse and the amount of hard surface, particularly as a consequence of the design of the road network [he estimates 600 lineal metres of roadway] is excessive. Mr Baker considers that a simpler road network could reduce the length of roadway to about 410 metres. In a further statement about the loss of the central row of trees, Mr Baker considers this represents a loss of a valuable asset and is a poor planning outcome.

57. Ms Treglown is of the opinion that it is reasonable in the circumstances of the site, that the riparian zone along the western boundary is the boundary that most suitably functions as a ‘rear’ boundary, and by itself, this area satisfies the deep soil zone requirements. As such, the other areas of deep soil along the eastern boundary and associated with the area of communal open space are surplus to requirements but provide visual amenity and environmental benefits. While she agrees that the central row of trees will be removed, Ms Treglown states that there is no requirement to retain all mature trees on a site, and notes that trees along the southern and eastern boundaries are to be retained.

58. With respect to the communal open space Ms Treglown considers that the landscape plan indicates grassed, landscaped and paved areas which are capable of accommodating a range of passive recreation activities. In response to Mr Baker’s issue that the communal open space should be capable of being used for ‘active’ recreation, she opines that this is the function of local parks and that the requirement in the controls for 5m2 per unit does not anticipate such a use. In her opinion, the location of the communal open space is within reasonable walking distance from all units, including #41 and its current location provides visual amenity for more units than would a central location.

59. In considering the extent of landscaping and hard surfaces, Ms Treglown states that the proposal is a medium density development with low volume accessways, many of which are one way, and not a subdivision with public roads. The revised landscape plans show compliant landscape strips between driveways and dwellings/courtyards and there are a number of larger landscaped bays throughout the development; the proposal provides 33% of the site as landscaped area. In Ms Treglown’s opinion the proposed setbacks from accessways are consistent with other developments approved by council including those at 26 and 118 Avondale Road. In her view the proposal achieves the objectives and development controls in WDCP.as the landscaping is located where it provides greatest benefit to the residents – that is, adjacent to the railway corridor, adjacent to the communal open spaces, along the main accessway into the site, as well as a 10m wide corridor adjacent to the riparian zone which provides a backdrop to the development and a linkage with other vegetation along the watercourse.

60. Under cross-examination by Mr Hemmings, Mr Baker agreed that his Urban Design Review of the proposal and the sketches he produced focussed on the issues raised by the IHAP and were based on his experience and started from a ‘high end’; he also acknowledged that he did not take into account particular controls such as setbacks from boundaries but did exceed the control for communal open space. He also stated that setbacks etc could be considered on their merit. Mr Baker agreed that the sketch of the site was part of his review of the proposal and done in a few hours to test some ideas but he did not keep a list of the assumptions he made when preparing it. He admitted that he was unaware of the fact that the land along the western boundary was flood prone land or that council required an additional setback along the southern boundary. Mr Baker stated that his intention was to illustrate, in broad terms, that an alternative design is possible, particularly in regards to retaining the central row of trees and incorporating them into the communal open space. He also replied to Mr O’Gorman-Hughes that he attempted to achieve the same yield through the number of dwellings and FSR, but reduce the roadways and maximise the landscaping near dwellings and address the rail noise.

61. In oral evidence Ms Treglown stated that there were many constraints on the site and that to retain the trees in the centre of the site was considered too much of a constraint. She reiterated the fact that virtually all of the trees on the perimeter are being retained. Ms Treglown maintained the opinions she expressed in the joint report.

Traffic and parking

62. In their joint report (Exhibit 6) the parties’ traffic experts, Mr Dowey for the applicant and Mr Rogers for the council, address the remaining contentions in regards to visitor and bicycle parking (Contention 2.7), pedestrian access and permeability (Contention 2.8) and amenity impacts (Contention 4).

63. They agree that the 14 visitor spaces comply with the requirements of the DCP and AS2890.1 -2004; given this compliance there is no need to provide parking on the driveway to each dwelling [a suggestion in Mr Baker’s review]. Mr Dowey states that using AS2890.3, bicycle parking would be considered as class 3 – low security/ no weather protection; in his view there is no requirement for the bicycle parking to be centrally located but in any event a condition could be imposed to require the location of visitor bicycle parking to be signposted.

64. The experts agree that the amended plans generally provide appropriate pedestrian connectivity within the site and that all shared zones should be designed and marked in accordance with the RMS Technical Direction ‘TDT-2014/003’. They also agree that the Australian Model Code for Residential Development (AMCORD) would classify the internal roads as Access Places/ Access lanes and not public roads and that the design satisfies the majority of the criteria for that designation. As noted in Mr Roger’s Statement of Evidence (Exhibit 7), the main exception is the width of the street reserve which AMCORD suggests should be 10m. He notes the separation between some buildings ranges from 6.5-8.5m which raises concerns about amenity and which he defers to Mr Baker.

65. The traffic experts were not required for cross-examination.

Communal waste storage area

66. Council’s contention 2.5 goes principally to the visual appearance of the proposed area near the front entrance and the need for the applicant to demonstrate appropriate access for waste storage and collection. The residents also raised concerns about the proximity of the collection area to an adjoining dwelling and possible odours.

67. The amended plans show an enclosed garbage collection area set back from the nearest dwelling and screened by landscaping. A designated paved loading bay adjoins the collection area. As a consequence, this contention is no longer pressed.

Staging of the development

68. Council’s contention 3 considers the staging of the proposed development. No evidence was adduced nor any submissions made in respect of this issue.

Submissions

69. Mr O’Gorman-Hughes for the council maintains council’s position that this is a very poorly designed development by modern standards. He presses the site analysis plan which he contends: shows the sun but doesn’t respond to it appropriately, for example the only two storey dwellings are on the southern boundary with their areas of private open space to the south; does not adequately deal with the proximity to the rail corridor; ignores the central row of mature and healthy trees, and does not take advantage of the views of the escarpment to the west. Mr O’Gorman-Hughes gives several examples of dwellings, which in council’s view, are examples of poor design. While he accepts that the proposal was initially recommended for approval, Mr O’Gorman-Hughes argues that the IHAP was not limited to a ‘box-ticking’ exercise and identified specific aspects of the proposal the IHAP considered needed further attention.

70. Similarly, Mr O’Gorman-Hughes contends that although the proposal complies with the acoustic controls in SEPP Infrastructure, these controls are limited to average measurements and do not take into account the impacts of intermittent and loud noises from passing freight trains which can be four times as loud as commuter trains (as measured by Mr Harwood). Therefore, whilst ticking the numerical compliance box, amenity will be compromised and the layout of the dwellings should reflect this constraint. Mr O’Gorman-Hughes notes that the applicant could have applied alternative designs as suggested by Mr Baker and illustrated in the NSW Department of Planning ‘Development near Rail Corridors and Busy Roads – Interim Guideline’ but elected not to do so. As such, he submits that from an acoustic point of view the design of the proposal is substandard and warrants refusal.

69. Mr O’Gorman-Hughes also cites the layout and distribution of landscaping and tree retention as indicative of poor site analysis and design. He maintains council’s view that the communal open space should be located in the centre of the site in order to facilitate the retention of established and healthy trees. Apart from the location of the communal open space, Mr O’Gorman-Hughes notes that Mr Baker’s suggested wider loop road is some 200m shorter than the road system proposed by the applicant; in addition the AMCORD street reserve width of 10m has not been applied which further compromises the amenity of the development. He maintains that Mr Baker’s illustrative sketch plan demonstrates that on all counts, a better design is possible.

70. Mr Hemmings SC for the applicant contends that this is a proposal which complies with every requirement in WDCP. He submits that these controls inform the appropriate level of amenity to be provided by and expected from such a development. However, Mr Hemmings maintains that compliance is not enough for council’s external consultant Mr Baker despite the long process of consultation with the council and the initial recommendation for approval. He presses the applicant’s consideration of, and appropriate response to, the constraints on the site including the railway to the east and flood prone land to the west.

71. In regards to acoustic amenity, Mr Hemmings notes that cl 87 in SEPP Infrastructure applies equally to rail lines and busy roads generating a flow of more than 40,000 vehicles per day. He submits that when the parties were standing on the site in the location of the private open for the nearest units, a passing commuter train created a minor interruption and that freight trains were infrequent. Mr Hemmings contends that there will be trains but the proposal complies with all of the applicable acoustic controls and therefore should not be refused on this basis.

72. Mr Hemmings argues that the proposed location of the communal open space is a better outcome than the respondent’s preference for a central location and results in a far better presentation from the entrance than the two nearby multi housing developments in Avondale Road. He submits that the design enables a view from the entrance to the communal open space; he maintains that the centralised location in Mr Baker’s sketch plan effectively privatises the space. Further, Mr Hemmings presses the more than compliant areas of both deep soil and communal open space and these that controls should not be conflated. He contends that the centrally located trees were along a former boundary and that while the proposal removes those trees it protects other trees on other boundaries and prioritises the restoration of the riparian zone; that is, the cost of protecting other trees and planting new ones is the removal of the central row of trees.

73. In considering the proposition that somehow the proposal is an over-development, Mr Hemmings submits the proposal provides an FSR of 0.26:1 where 0.5:1 is permitted in the zone. In interrogating Mr Baker’s sketch plan, apart from the number on non-compliances with council’s controls including the flood planning levels, Mr Hemmings notes that the difference in hard surfaces, when the width of roads is taken into account, is about 100m2 and therefore negligible over the whole site. He maintains that the issue of privacy and proximity to the internal road network has not been substantiated and in any event there are no particular controls. With respect to the road system and pedestrian access, Mr Hemmings asserts that the traffic engineers agreed that the internal accessways are shared zones and therefore separate pathways are not necessary on safety grounds.

74. In response to Mr O’Gorman-Hughes submission of the location of the two storey units on the southern boundary, Mr Hemmings notes that 79% of the units comply with the solar access controls and to require any further compliance would trigger s 79(C)(3A) of the EPA Act.

75. In conclusion, Mr Hemmings maintains that the council’s position that the site analysis was inadequate is unusual as it is simply a tool used to analyse and design a development in the light of council’s controls, which in this case has been carried out and has resulted in a compliant development.

Findings

Acoustics

78. The applicable control is cl. 87 SEPP Infrastructure and not NSW EPA ‘Rail Infrastructure Noise Guideline’ 2013. If by using the measurement criteria specified in the SEPP, that is an average over a 9 hour period, and the proposal complies with the acoustic standards, it cannot be substandard as expressed in particular 1c. The council has not engaged an acoustic engineer to provide an independent assessment therefore I must rely on Mr Harwood’s expert opinion; on the evidence before me I have no reason not to do so. The initial council assessment report provided to the IHAP of 18 December 2014 notes the applicability of cl. 87 and refers to relevant draft conditions of consent requiring compliance with the levels specified in that clause.

79. In regards to Mr Baker’s alternative as described in his review report and illustrated in the sketch plan, this shows an almost continuous brick wall of one to two storeys along the length of the eastern boundary and no setbacks. This point is noted and comprehensively taken apart in the applicant’s response to Mr Baker’s report. Amongst other things, the response notes the absence of a setback from the rail corridor, failure to consider stormwater flow from the Railcorp land, the removal of almost all trees along that boundary, the absence of landscaping along that boundary; and the fact that the rooms would still require ventilation (Exhibit 2, Tab 8).

80. Therefore, as required by cl 87(2) SEPP Infrastructure, I have taken into consideration the relevant guidelines. I am not persuaded by Mr Baker’s evidence or by Mr O’Gorman-Hughes’ submissions that the acoustic amenity is unacceptable. As required by 87(3) in SEPP Infrastructure, I am satisfied that appropriate measures will be taken to meet the specified noise controls and thus I have determined that the proposal will not be refused on this basis.

Landscaping

81. It is common ground that the proposed development complies with all of the numerical controls in WDCP for deep soil planting, private open space and communal open space. The differences in opinion go to whether the proposal achieves the objectives. While qualitative in their expression objectives often contain descriptors which, unsurprisingly, link to quantitative requirements in development controls.

82. Based on the summary of the landscape proposal in [49] of this judgment, I am satisfied that the proposal achieves the objectives in cl. 5.8.1 WDCP (see [51]). Given the fact that this is a multi-dwelling development on a green-field site, the built form will dominate portions of the site; however, the landscape plans show larger trees planted along the main entrance from Derwent Avenue and strategically throughout the site on the corners of the road network as well as in part of the communal open space. These are in addition to smaller trees in front and rear setbacks of most units as well as the backdrop of retained trees and enhanced plantings along the southern, eastern and western boundaries. The northern boundary is also landscaped along its length, albeit with trees and shrubs smaller in stature than those along the other boundaries. Thus, the proposal ‘enhances the appearance of housing through integrated landscape design’ (objective 5.8.1(a)). I agree with Ms Treglown that this is in contrast to the nearby and recently approved multi- dwelling developments in Avondale Road which were inspected during the hearing and where there was little if any landscaping at the front of units and little in the way of any substantial planting visible from the public domain. Objectives (b) and (c) consider increasing the volume of substantial vegetation and reducing impervious areas/ increasing soft landscape screenings between side orientations of residential developments. These objectives link to the numerical development control of 30% of the site area to be landscaped and therefore must assume the remaining 70% to be occupied by built form/ hard surfaces. The proposal achieves this. In the context of a multi dwelling development the side orientations are reasonably considered to be the site boundaries. Apart from tree planting, the landscape plan shows areas of turf and shrubs plus the road network includes areas of permeable paving.

83. In regards to whether the deep soil planting proposal achieves objective (a) in cl. 5.9.1 WDCP – that is, to protect existing mature trees and encourage the planting of additional significant vegetation, I find that it does. I accept the applicant’s position that there was a trade-off between retaining trees in the central portion of the site and managing other constraints and complying with other necessary controls. While I agree that the trees in the centre of the site, in particular a large and healthy Forest Red Gum, provide visual amenity and contribute to the current rural/ more natural landscape character of the site, there is no compulsion to retain all trees on a site. I note that the council assessment report of 18 December 2014 includes comments about internal referrals. It notes that the proposal was assessed by both council’s Landscape and Environment Officers who provided conditionally satisfactory referral advice. As the proposal involves the removal of 49 trees, the Landscape Officer reviewed the Arboricultural Report and was satisfied that the removal of the trees was acceptable subject to appropriate conditions including the need for compensatory plantings. The landscape plan demonstrates this can be achieved. I also note that Mr Baker’s sketch plan does not include the exiting trees on the southern and eastern boundaries which provide a visual screen from both the railway corridor and the medium density Department of Housing development.

84. I agree with Ms Treglown’s opinion that in the circumstances of the site, the riparian zone is a logical rear boundary and that prioritising that area for deep soil planting is appropriate for many reasons including weed control, erosion control, visual amenity and connectivity for flora and fauna. It also complies with Development Control 5.9.2.4 that the deep soil zone ‘ be densely planted with trees and shrubs’ and is not inconsistent with development control 5.9.2.1(b). Both the Vegetation Management Plan and the Landscape Plan indicate that this is intended; draft condition of consent #6 requires the implantation of the VMP. I note Mr Baker’s assertion (at [54] of this judgement) that areas of deep soil should be accessible for passive recreation. This seems counter to the requirement that deep soil areas be densely planted. The provision of designated deep soil planting zones along the eastern boundary is also consistent with control 5.9.2.1(c) in that it allows for the retention of significant trees. Whilst not centrally located within the site, the location also complies with part of control 5.9.2.1(a) in that it will allow overlooking from dwellings in the development as it is surrounded by units [I note more units than shown in Mr Baker’s sketch plan].

85. The failure of the proposal to incorporate the communal open space in the centre of the site appears to be at the heart of council’s and Mr Baker’s concerns. Notwithstanding it will be a slightly longer walk for residents along the northern boundary, the distance is not significant and the area is accessible by all residents and of an adequate size to be functional; it thus meets the objectives for communal open space in cl. 5.10.1 WDCP (see [50]). Both experts noted the distance from unit 41 – while this is some distance from the communal open space it is adjacent to the riparian zone and therefore will have the benefit of nearby visual amenity. I reject Mr Baker’s assertion that the space should be suitable for more active recreation such as ‘kicking a ball around’. I agree with Ms Treglown’s assessment that a control requiring 5m2 per unit does not anticipate such a use; requiring more space than specified in the DCP ventures into s 79C(3A) territory. Similarly, applying Mr Baker’s reasoning in regards to control 5.10.2.3 that the communal open space should include play equipment and seating it would follow that a swimming pool should be included. The area includes paving which is one of the amenities listed in that control. Overall, I am satisfied that the proposal complies with the objectives and development controls for communal open space in cl. 5.10 WDCP.

86. As a consequence, I am satisfied that the proposal does not warrant refusal on the basis of landscaping, communal open space or deep soil planting. Despite being re-agitated by Mr O’Gorman-Hughes in submissions, the solar access requirements for private open space comply with WDCP and this issue will not be a reason for refusal.

Traffic and parking

87. I am satisfied on the evidence in the joint traffic report that, subject to the adoption of the conditions proposed by the experts, the contention has been addressed and does not warrant refusal of the proposal. While Mr Baker has an issue with the setback of dwellings from the internal road network and Mr O’Gorman-Hughes’ submits that the access roads are less than the 10m width recommended by AMCORD, the setbacks are not inconsistent with those approved on other nearby multi dwelling developments but do include more landscaping.

Site analysis and objectives for residential development

88. Could the design of the development have been better? Possibly, but apart from not being privy to the full extent of the development planning process and the negotiations with council and other authorities, it is not the role of the Court to apply more onerous standards. I agree with Mr Hemmings that this would be counter to s 79C(3A) of the EPA Act which specifically states that a consent authority is not to require more onerous standards if a proposal complies with the standards in a DCP.

89. It is clear that the proposal has gone through a site context and design analysis stage in which the constraints and opportunities were considered (as required by objectives (b) and (c) s9, Chapter A1 WDCP – see [32]), and for a variety of reasons, including providing a type of housing for a particular market and a proposal which is commercially viable, the applicant has formulated the proposal now before the Court. The applicant’s seven page response to Mr Baker’s Urban Design Review comprehensively details the site constraints, the applicant’s approach and objectively and reasonably critiques and rejects the alternative options suggested in it. The response concludes in part:

Unfortunately the theoretical redesign of the development has taken little account of:

1.   The Council’s DCP and LEP requirements for side setbacks, visitor parking and TPZ’s [Tree protection Zones].

2.   Various site constraints including the vicinity of the Railcorp asset, TPZs for trees on the site and adjoining properties, flooding and overland stormwater flows from adjoining property.

3.   Project viability and market place requirements.

90. I agree with this conclusion and therefore give little weight to the Urban Design Review and to council’s reliance on it.

91. As to satisfaction of the broad objectives in Chapter B1 WDCP which apply to all residential development in the Wollongong local government area, I make the following observations. Objective (a) seeks to ensure a ‘high standard’ of residential development; it would seem to me that if a proposal for a permitted development meets/exceeds the applicable controls or standards contained elsewhere in the document, it should, in broad terms, achieve that objective. While the proposed development is quite different in its form and character to the existing streetscape in Derwent Avenue, it is a permitted form of development in a discrete area at the end of the road; the main accessway through the site will have a landscaped edge which will create a degree of continuity (objective (b)). Objective (d) concerns retention of trees and natural features – this has been comprehensively discussed and while some trees are lost, others are retained and new ones planted. Amongst other things, objective (e) refers to the ‘highest possible architectural, environmental and amenity standards’. This must read in the context of the applicable controls, the type of development and the economic realities of the area in which the development is proposed. There is no suggestion that the proposal does not meet the BASIX requirements. Similarly, regarding objective (f) there was no evidence to suggest that the proposal does not achieve the principles of ESD. Therefore, overall I am satisfied that the proposed development achieves the objectives in Chapter B1 WDCP.

Submissions

92. As required by s 79C(1)(d) EPA Act I am required to consider any submissions made in accordance with the Act or the Regulations. The oral submissions made on site, summarised in [26] appear generally consistent with the written submissions included in Exhibit 2. The issues raised by the objectors go to density of development and character, traffic along Derwent Avenue, amenity for future residents, flooding and stormwater, and location of the garbage collection area.

93. In regards to density I accept Mr Hemmings’ submission (at [74]) that the proposal is approximately half the FSR prescribed in WLEP and the proposal otherwise complies with the controls in WDCP. As stated elsewhere, while it will have a different character, it is a permitted form of development in a relatively discrete/ separate part of the street.

94. Many residents were concerned about traffic flow along Derwent Avenue which is between 5-5.5m wide. Derwent Avenue has no formal footpaths and pedestrians tend to use the roadway. I note the information contained in council’s assessment report dated 18 December 2014 and which includes further information from the applicant. In summary, the expected traffic flow would normally require a road carriageway of 7.5m, however, rather than widen Derwent Avenue the applicant proposes to construct a footpath from the development site, along Derwent Avenue and Oakland Close to a bus shelter on Avondale Road. The applicant’s case being that this will benefit both existing and future residents. The response from the council officer is:

Whilst it is acknowledged that the development generated traffic would exceed the capacity of the exiting road network, it is noted that the inclusion of a footpath and proposed turning for waste collection vehicles would minimise risk and allow for the safety of pedestrians.

Within the site, there is adequate passing and manoeuvring for vehicles. Waste collection will be undertaken on site by a private waste contractor as an adequate street frontage is not available. A dedicated waste parking bay is provided for a medium rigid vehicle. It is also noted that waste collection vehicles and emergency vehicles have adequate manoeuvring capabilities onsite.

Adequate car parking spaces have been provided for residents and visitors including bicycle and motorbike parking. The garages for the nominated adaptable dwellings also comply with the relevant standard.

Overall, due to the context and location of the site in addition to the conflict mitigation measures presented, the proposal is considered acceptable with regard to impacts on the local road network. The proposal will reduce the risk to (road users) vehicles and pedestrians and improve the current waste collection manoeuvring arrangements [reversing up the street]. Council’s Traffic Officer considers the proposal satisfactory, subject to appropriate conditions.

95. While some mention Derwent Avenue was made in council’s contentions, it was not raised in any submissions. I am satisfied that this concern has been considered by the relevant experts.

95. Similarly, the records show that council’s Stormwater Officer has reviewed the proposal including an accompanying flood study report and no concerns have been raised. The fact that the site is constrained by being partly flood prone land has been accommodated in the layout and levels of dwellings. The stormwater issue has also been addressed.

96. In the light of the findings already made, I am satisfied that the remainder of the residents’ concerns that can reasonably be considered in the context of this appeal have been addressed.

Conclusions and orders

98. With the benefit of the site inspection, the evidence and submissions, and having regard to the matters for consideration under s 79C(1) of the EPA Act, the Orders of the Court are:

1. The appeal is upheld.

2. Development Application DA-2013/1447 for the construction of multi-dwelling housing and associated works on Lot 2 DP 1187142 at 10 Derwent Avenue, Penrose, is approved subject to the conditions of consent in Annexure A.

3. The exhibits except 1, 8, A3, F1 and F2 are returned.

_______________________

Judy Fakes

Commissioner of the Court

10437 of 2015 Conditions Annexure A (1.08 MB, pdf)

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Decision last updated: 12 January 2016