Durward Pty Ltd v Sutherland Shire Council

[2004] NSWLEC 12

Land and Environment Court

of New South Wales

CITATION:

Durward Pty Ltd v Sutherland Shire Council [2004] NSWLEC 12

PARTIES:

APPLICANT
Durward Pty Ltd

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

11034 of 2003

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Area context - building design - streetscape - solar access - landscaping - public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act
Sutherland Shire Local Environmental Plan 2000

CASES CITED:

DATES OF HEARING:

12, 13, 14 January 2004

DATE OF JUDGMENT:

01/28/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay, barrister
SOLICITORS
McKees Legal Solutions

RESPONDENT
Mr R O'Gorman Hughes, solicitor

JUDGMENT:

11034 of 2003

Hussey C

28 January 2004

Durward Pty Ltd

Applicant

v

Sutherland Shire Council

Respondent

Judgment

Background

1. This matter involves an appeal against council’s deemed refusal of a development application for 8 residential villas and 14 townhouses comprising a total of 22 x 3-bedroom units, with basement carparking for 49 vehicles.

2. The site is located at 54 - 62 Osprey Drive, Illawong. It is roughly trapezial-shaped, with a total area of 7674.1 sq m. It has a frontage to Osprey Drive of 80.46 m and extends through to Lambeth Place where it has a 69.73 m frontage.

3. The site contains a single storey fibre cement dwelling house, a garage and minor outbuildings. On the site there are a number of native trees including groups of eucalyptus.

4. The surrounding residential area contains single storey and two-storey houses in a range of styles from the late 20th century, set in gardens of suburban plantings. Face brick walls with tile roofs are the predominant building materials.

The proposal

5. This proposal involves:

• the demolition of existing structures on the property,
• the construction of 22 detached and semi-detached dwellings of 1 and 2 stories, with 10 facing Osprey Drive and 12 facing Lambeth Place,
• the provision of a central communal open space and private pedestrian access way between Osprey Drive and Lambeth Place,
• ground level private open space for each dwelling,
• excavated basement level carparking beneath the proposed buildings with access from Osprey Drive,
• strata subdivision into 22 lots and common property for access and communal open space areas.

6. The proposed buildings are to have varied setbacks to the street alignment and be finished in natural colour schemes to blend with the surrounding bushland environment. Extensive landscaping is also proposed to augment the existing vegetation along both street frontages and the internal central open space.

Planning controls.

Sutherland Local Environmental Plan 2000 (SSLEP 2000):

7. Under this instrument, the subject site is within the 2(a1) Residential Zone and the proposal is permissible with consent.

8. The objectives this zone are for a residential environment:

(a) where the scale, amenity and general character of the area is preserved, and
(b) where the streetscape is characterised by detached 1 and 2-storey residential buildings, and
(c) where the predominantly single dwelling house character of neighbourhood is not diminished by the cumulative impact of successive dual occupancy, townhouse or villa house developments, and
(d) where non Residential uses provide necessary services to the local neighbourhood without adversely affecting the residential amenity .


Draft Local Environmental Plan 2004 (DLEP 2004 )

9. This draft LEP is currently on exhibition and proposes that the subject site be zoned Environmental Housing Bushland. Under this plan townhouses and villas are to be prohibited.

10. However clause 21(2) contains a standard type savings clause, which if effected, would save those applications lodged but not determined prior to gazettal. The subject application falls into this category.

Development Control Plan for Townhouses and Villa Houses in 2(a1) and 2(a2) Residential Zones .

11. This DCP provides development controls to ensure that townhouse and villa house developments are compatible with other housing in the locality, the community expectations and the objectives of the respective residential zones.

12. The relevant objectives include:

a) to ensure that townhouses and villa houses are compatible in scale and character with existing housing and do not adversely affect the local environment or the amenity of adjacent residents.
b) to encourage an increased housing choice for Shire residents.
c) to encourage the scattering of townhouses and villa houses throughout the 2(a1) and 2(a2) Residential zones.

13. Clause 10 deals with the capacity of neighbourhoods to accept medium density development. Clause 10.3 provides for the separation between villa house and townhouse development sites, depending on the number of units proposed.

14. Clause 12.3 allows a maximum floor space ratio (FSR) of 0.45:1 in this Residential 2(a1) zone.

15. Clause 17 deals with sunlight and overshadowing. The objectives provide for:

1 Overshadowing of neighbouring or internal dwellings minimised, particularly solar
collectors.
2 Control of summer sun and admission of winter sun to dwellings wherever
practical.
3 Reasonable access to sunlight for living spaces within buildings and open space
around buildings .

16. The associated controls indicate that living area should be oriented to the north or north-east and each new dwelling must have an outdoor area, which is an extension of the living area of the dwelling. At least 60% of this outdoor area is to receive direct sunlight at ground level for the four-hour period between 10 am and 2 pm during midwinter.

17. Clause 21 deals with site facilities and requires the provision of an area for temporary storage of waste and recyclables, such area to be in accordance with the Garbage Service Matrix.

The issues

18. Insofar as a number of issues were initially identified, some of these were addressed in the lead-up to the appeal. So that the outstanding issues concern:

• the appropriateness of the design,
• orientation of buildings,
• solar access,
• integration of landscaping,
• public interest, involving the impact of this form of medium density development, access and safety.

19. Evidence on behalf of council was presented by:

• Mr P Brooker, environmental assessment officer - Architecture, with Sutherland Council and his report is exhibit 7.
  • Ms T Melville, neighbour, 69 Osprey Drive, Illawong.
  • Mr L Tamassy, neighbour, 12 Lambert Place, Illawong.
    

20. For the applicant, evidence was presented by:

• Mr D Chesterman, consulting architect/town planner and his report is Exhibit G.
• Mr S Pittenrigh, consulting landscape architect and his report is Exhibit H.
• Mr J Pagan, consulting town planner and his report is Exhibit F.

Discussion of the evidence

21. The prevailing control is SSLEP 2000, which allows appropriate townhouse and villa development within the residential 2(a1) zone, providing the amenity impacts are acceptable. Whilst the DLEP is in progress, there is no substantive evidence to indicate its imminent or certain gazettal. In any case, it contains a savings clause, which will likely allow this application to be considered on the basis of SSLEP controls. Therefore I do not consider that determinative weight should be given to the provisions of the DLEP, which would likely prohibit the subject development.

22. Turning then to the relevant merit matters, I note from the joint planner's report, there is agreement that this area comprises a mix of 1 and 2-storey dwellings, which are set in suburban gardens and surrounded by natural bushland. Furthermore, it is agreed that the proposed development complies with the provisions of SSLEP 2000 relating to height, floor space ratio, landscaped area, allotment size and allotment dimensions.

23. Additionally, it appears to me that the controls encourage a mix of housing types to allow choice for a variety of people in the area. This is confirmed in Mr Chesterman's evidence. Therefore on the basis of the aforementioned compliances, I consider the current controls allow for a suitable medium density development of the subject form, to be permitted on the site, which preserves the amenity and character of the area but which is not necessarily of the same detached dwelling style, as existing dwellings.

24. Insofar as clause 10 of the DCP applies, its intent is to restrict the clustering of medium density type developments. In this case application of the control would require a separation distance in the order of 400 m. However it is apparent from the view that because of the location of the site and its topography, there is no other such development within the visual catchment or amenity range and the undesirable clutter effect will not occur. Therefore I do not consider it reasonable to reject the application on the basis of unsuitability of the site or separation distances.

25. The main concerns of council are primarily with elements of the design because of the building orientation, which restricts solar access and impacts on the streetscape and neighbouring properties. In this regard, Mr Chesterman says that although SEPP 65 does not apply to this development, it's ten stated "good design" principles provide an excellent basis for evaluation of housing project. He states that the design response for this context has been to:

• Preserve and reinforce the existing bushland frontages to Osprey Drive and Lambert Place and substantial setting back the proposed villas and townhouses.
• Limit the number of pedestrian paths across these bush land "buffers" to 7 and provide one vehicle entry.
• Place early all the parking provided directly under the proposed buildings to minimise site disturbance retain most of the unbuilt upon areas of the site for deep soil planting.
• Preserve significant healthy trees and establish many more indigenous specimens throughout the site, on the substantial area available, in the manner described in the landscape report by Mr Pittenrigh.
• Interperse 1 and 2-storey buildings, placing single storey buildings adjacent to existing houses.
• Use simple traditional building forms finished in colours that are based on the indigenous vegetation.
  

26. With respect to the design concept, it appears to me that the design adequately recognises the element of the surrounding existing 1 and 2-storey housing form and integrates this into the proposal. There are single storey villas adjoining the external boundaries and alternately 2 storey townhouses integrated internally, with the overall development placed over the basement carpark. Apart from the basement carpark, which has limited impact, the above ground development is consistent with existing form of housing, as allowed by the controls.

27. Whilst this parking arrangement may lessen to some extent the separation between individual houses by reducing setbacks for access, nevertheless Mr Chesterman says this is an acceptable design outcome, partly because it reduces the number of crossings through the native vegetation and I rely on this opinion, to conclude that the development will adequately preserve the amenity and character of the area.

28. An associated element concerns streetscape impact. In this regard most of the neighbours apparently prefer detached housing of similar style to that existing, which has attractive architectural features that are visible.

29. But I am satisfied from the applicant's evidence, that Mr Pittenrigh has adequately considered the natural features and vegetation of the site, resulting in an appropriate landscape plan. This landscape plan is based on detailed tree investigations by arborist (Mr Hartman), who concluded that certain of the mature trees are poor condition and should be removed.

30. Accordingly the landscape plan maintains the other mature vegetation and integrates new landscaping, together with the substantial retention of the sandstone outcrops in the front setback areas. This landscaping treatment then allows filtered views of the street elevations of the front of the new buildings. Taking into account the proposed building finishes, which are to be of natural, earthy tones, I consider integration of building form and landscaped treatment is satisfactory. In reaching this conclusion, I rely on Mr Pittenrigh’s evidence that:

Much of the existing streetscape and landscape character will be retained. The significant mature trees and associated plantings will be preserved and reinforced by planting of large trees, native shrubs and ground cover plantings indigenous to the locality so as to maintain the existing visual amenity, habitat, wildlife movements and biodiversity of native vegetation….

31. Part of Mr Brooker’s concerns for the streetscape impact related to the proposed building setbacks. However the amended layout plan, accepted into evidence as exhibit L, provides for some staggering of building setbacks, which I consider addresses these concerns as stated by Mr Pagan and is reasonable in the circumstances.

32. In summary then, I rely on the evidence of Mr Pittenrigh and Mr Chesterman that the streetscape impact is acceptable and accordingly there is reasonable compliance with the zone objectives (a), (b) and (c), so that the external amenity and streetscape impacts are satisfactory.

33. Notwithstanding this, I have also considered Mr Brooker's other major concern regarding the element of the east-west lot orientation and the resultant poor solar access to many of the units. However, this concern is addressed to some extent in the amended plans (Exhibit L), by the provision of additional north facing windows in the majority of living room walls, in association with the staggered building setbacks.

34. Whilst Mr Brooker still considers the solar access unsatisfactory, nevertheless the lot orientation does result in courtyards of all units receiving adequate solar access. In regard to the limited admission of winter sun to dwellings, this DCP objective is qualified to "wherever practicable". According to Mr Brooker's preference, a more appropriate orientation is for a total redesign based on all lots having a north-south orientation to enable greater winter sun admission to living rooms. Against this, Mr Pagan acknowledges the possibility of such redesign but considers there are negative aspects of considerably more common boundaries with the side boundaries to the existing properties, which are likely to reduce existing amenity. Also he considers that this orientation would likely have extended side boundaries and building elevations fronting both Osprey Drive and Lambeth Place, which is not generally consistent with the existing subdivision pattern or streetscape character.

35. Taking into account that there is no specific numeric control for solar admission, the assessment by the planners (Exhibit 12) indicates that the living rooms of 17 of the 22 units do receive reasonable solar access i.e. 77%. Also, that all the units have good solar access to their courtyards and additional access to the central communal open space area, on balance then I am inclined to accept the evidence of Mr Chesterman and Mr Pagan that the solar access provisions are satisfactory, in this case.

36. Insofar as other design elements were initially challenged by Mr Brooker, it appears that the clarification of plan detailing and acceptance of the applicant's proposed conditions of consent can reasonably addresses these matters, which include:

• Front fences; Mr Brooker is concerned that the proposed fences will present a compound effect due to their height, which is uncharacteristic of the street. In response the applicant agrees that these fences be deleted and on this basis I consider this concern is adequately addressed, subject to the implementation of suitable front landscaping.
• Basement security; As the proposal does not allow for casual public entry and each unit has individual access to the basement, I do not consider this concern is sufficient to warrant rejection of the proposal.
• Privacy; The main concern in this regard is for the level of privacy of the first floor terraces and also overlooking opportunities from these balconies. I accept Mr Pagan's evidence that the first floor bedrooms can be extended to common wall, which should reduce internal privacy disamenity. Also I note the applicant’s proposed condition for the balconies to be divided by full length walls of opaque material. Accordingly I consider this should be acceptable and the detailed material specification to be determined at Construction Certificate stage. I also consider there would be a marginal improvement in external privacy if appropriate privacy screens are attached to the sides of the first floor rear balcony.
• Lambeth Place frontage; The concern is that because 12 of the units front Lambeth Place there will be substantial additional traffic resulting in safety and disamenity impacts. However the proposal provides for all parking to be in the basement carpark (including visitor parking), which is to be accessed from Osprey Drive. While some of the units front Lambeth place, I accept there will probably be some street parking for convenience. But the applicant offers to erect a sign directing visitor parking to the Osprey Drive carpark and also to upgrade the road shoulder and kerb in this street. Taking into account that there is no identified traffic issue in these proceedings, and the likelihood of some level of future street parking/access from an alternative development, I then consider the aforementioned conditions reasonable.
• Headlight glare; This concern was raised by Ms Melville whose house is opposite the site near the basement entry point. Her concern is that there will be a concentration of light spill into her front windows, due to the constant use of this access point. This matter was not specifically identified as an issue, however the view indicated that the entry alignment is offset from Ms Melville's house and it is opposite an existing 1.8 m high fence. Given the likely levels of the access profile alignment, it seems that the lights sweep from turning vehicles will be restricted to a reasonable level by the fence and adjacent vegetation, according to Mr Pagan. Therefore I do not consider this concern sufficient to warrant rejection the application, bearing in mind that an alternative subdivision development of the site, could result in multiple driveways with more light sweep.

Conclusions

37. Having considered the evidence, submissions and undertaken a view, I am satisfied that this application merits conditional consent.

38. Insofar as its mixed/townhouse design form is somewhat different to the existing single detached dwellings in the neighbourhood, nevertheless the current controls allow this form of development. The applicant has given consideration to the existing neighbourhood character and sought to achieve a reasonable degree of compatibility by introducing single storey and two-storey building forms, which are integrated with the existing and proposed landscaping so as to address the bush land features of the area. This is consistent with the DCP objectives to encourage a scattering of villa/town houses, so as to provide increased housing choice.

39. With regard to the adequacy of the design, I accept there could be alternative designs, including the re-orientation of the lots to improve solar access. However there are probable negative aspects of these designs, which would require assessment. In the circumstances of this case, I find that a reasonable balance has been achieved with the building orientation because it generally follows that of the existing allotments with properties addressing the street and still achieving a reasonable level of solar access.

40. In any case there was no detail alternative design before the Court and the Court is not a design authority. Accordingly I rely on the evidence of Mr Pagan, an experienced town planner and Mr Chesterman an experienced architect and urban designer who concluded that the proposal performs well against the criteria in SEPP 65 (which I accept is reasonable good design criteria) and "has the potential to result in a high-quality design outcome".

41. In consideration of the other disputed design elements, I am satisfied that the amended proposals by the applicant adequately address these and can be covered by conditions of consent. One of these matters concerns the finishes specifications and setbacks. Having considered the notification policy implications for these amendments, I consider them minor and appropriate for conditioning.

42. In summary then, I note the council’s submissions about the inadequacies of the design and I accept there are some compromises in completely achieving the DCP controls. But the proposal complies with the numeric controls and as building design assessment is quite subjective, I consider it basically satisfies the zone objectives and design control intentions, so as to merit conditional consent.

Court Orders

1 The appeal is upheld.

2 Development consent is granted to DA 03/11/79 for the demolition of existing structures and erection of 22 Townhouses and strata subdivision at 54 - 62 Osprey Drive, Illawong, subject to the conditions in Annexure A.

3 The exhibits may be returned except for 7, 8, 9, B, D, F, G and L.

___________
R Hussey
Commissioner of the Court
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